Fairman's Appeal from Probate

Butleb, J. It was determined by this court in Swan v. Wheeler, 4 Day, 137, that an administration account consisting of a sum in gross, without items or explanation, should not be allowed. The reasons for requiring that all distinct items should clearly appear by themselves, so that they could be intelligibly examined by the parties in interest, are there fully stated. That decision has been uniformly recognized and followed upon the circuit, and generally conformed to by the courts of probate. The propriety of the rule is well illustrated by this case. This executor, in the item of “ expenses of settling the estate,” charged in gross at $567.75, embraced a debt of a considerable amount claimed to be due himself, and other items which it clearly belonged to him to pay, which formed no part of the expenses of settling the estate. This may have been honestly and mistakenly done ; but it has a [209] suspicious appearance, and shows clearly the importance of full and detailed schedules, embracing every distinct item of expenditure, so that a fraudulent concealment in relation to any item shall be impossible, and an intelligible examination of the account may be readily and reliably made. On this ground, if upon no other, we should reverse the decree appealed from. But there were items embraced in that general charge which the executor was bound to pay out of his own estate, by the conditions attached to the devise which he had accepted. He was bound to pay the taxes. Whether technically a debt or not is immaterial. They constituted one of the claims which the testator was under obligation to pay at the time of his decease, and it was clearly his intention that the executor should pay all such claims. The maimer in which he disposed of his estate, taken in connection with the amount and nature of it, shows that he intended that it should not be lessened by any claims or demands, but that the executor in taking his real estate should assume and pay them, and leave his personal estate untouched for the legatees. We think the tombstones also should be considered a part of the “ funeral expenses.” They are no necessary part of the expenses of settling the estate. The estate can well be settled and closed without procuring them. But they seem to be connected with the burial, and to properly belong to that part of the expenses. Expenditures for digging and filling the grave certainly are, and the stones placed at each end of the grave are so placed to mark, define and protect it. The inscription on the stone may be more extended than is necessary for that purpose, but that is the principal object. They are not set up at the time of the burial, because not then prepared, but they are when set up fixtures of the grave, as bounds and fences are fixtures of lands, and the sums paid for them should be considered a part of the funeral expenses. But we do not intend to hold that an administrator or executor may procure them in all cases at the expense of the estate. If the estate is solvent we think he should consult the heirs, and have the advice and approbation of the court of probate. [210] If it is insolvent they certainly should not be obtained without that advice and approbation. In the absence of specific legislation, the propriety of obtaining them, and at what expense, may properly be left to that court. The facts found are not sufficient to enable us to determine whether the sums paid in defending the will are properly chargeable against the estate; nor whether the money loaned and charged on book was so had as to constitute an offset against the note held by the testator, or to be considered as a debt which it was the intention of the testator that the executor should cancel if he accepted the devise. The decree must be reversed and the whole account must be remanded to the court of probate for a new, full, and careful investigation in relation to all the dispxxtable items embraced in the charge of $567.75 as expenses of settling the estate. In this opinion the other judges concurred.