Dickson v. Hitt

Mr. Justice Walkeb delivered the opinion of the Court: This was a bill filed to impeach the final settlement, order of distribution, and discharge of appellee as executor of the estate of John M. Sitton, deceased, made in and1 entered by the probate court of Scott county, at its June term, 1875. The bill was filed by the creditors of Sitton’s estate, charging that appellee, in his reports to the court, in his inventories and sale bill, omitted to charge himself with a large amount of property in value which belonged to and was assets of the estate, thus fraudulently misapplying the same to the injury of the creditors, who have received only 69J per cent on their claims allowed, in the 6th class, against the estate. Appellee, however, claims that he has accounted for and paid in full for all the money, property and other assets of the estate, and he has been rightfully discharged from the further administration of the estate, and is not nor should he be further charged with anything relating thereto. A hearing was had, on the bill and answer, the cross-bill and answers, replications, exhibits and proofs. The court found for defendant, and dismissed the bill. Complainants perfected an appeal from the circuit to the Appellate Court for the Third District, where the ease was heard and the decree of the circuit court affirmed, and they bring the record on appeal to this court and urge a reversal. It is claimed by appellants, that Sitton died the owner and in possession of over $4000 of personal property, which appellee has neither inventoried nor accounted for, and that he has never accounted for some that he did inventory, and that he failed to collect and account for a debt of some size owing Sitton at the time of his death, and has charged, and the probate court allowed him, commissions on money never collected or received. These are the items which, it is charged, he has fraudulently withheld or for which he charged and received an allowance. It is claimed that the settlement at the June term, 1875, of the probate court of Scott county, was final, and not having been reversed, and remaining in full force, it must, at all times and in all places, be held conclusive on all parties in interest. Appellee gave notice that at that term, he would make a final report and apply for a discharge from the further administration of the estate. At the term, in pursuance of the notice, appellants appeared by counsel and the settlement was made, and appellee was discharged. As to them, whatever the law may be as to others, this settlement and adjudication must be held final and conclusive in a collateral proceeding. They were present contesting his claims, and, having had their day in court, they have no right to again litigate the same matters in another proceeding. If dissatisfied with the result of the settlement, they could have appealed, and if errors were committed they could have been corrected. Having appeared and participated in the trial, they, as in any other case, are bound by the result. Whether the cattle allowed by the executor to Mrs. Sitton as her separate property before her husband’s death, was in fact her separate property, was a question proper to be raised before the probate court on the final settlement, and should have been so presented and determined, and we must presume it was, and adjudicated, and if it was not, no excuse is given why it was not. ¡Nor does the evidence show that that property belonged to the estate. It is no doubt true, and the bill proceeds on the theory, that such a settlement may be impeached for some kinds of fraud in the settlement, committed by appellee. But such a bill will not lie to correct mere errors committed by the probate court in the settlement. Then, did the failure to account for the value of the bull, and charging commissions on the uncollected and worthless note, amount to a fraud, and, if so, was it of the character of fraud which authorizes a court of equity to review such a settlement and correct the judgment rendered by the probate court Z We think not. Appellee had returned the animal as property of the estate, with its appraised value. In this there was no fraud or concealment. That inventory and appraisement were no doubt on file in the probate court, open to the inspection of appellants and their counsel at the time of the settlement, and the presumption is that it and all other papers charging him with assets of the estate were examined, as it is not perceptible how a final settlement could have been made without takingthem into account, and, if so, it may have been error not to charge appellee with the appraised value of the bull, it being prima facie evidence, and also in allowing him commissions on the uncollected note. But we fail to see wherein appellee committed any fraud in either. If he claimed them for any reason to be just credits, that was not fraud, and the probate court allowed their justice. Being simply errors that should have been corrected on appeal, a court of equity will not take jurisdiction to correct them. As to the claim of interest, appellee denies that he used any portion of the money for his own use or that he made any profit from it. ¡Nor did the probate court, on the final settlement, charge him with interest. Under such facts a court of chancery will not entertain a bill to cdetermine whether the probate court erred in not charging him with interest, but even if a bill would lie for the purpose, the evidence fails to show error iu the probate court in this respect. Perceiving no error in the record, the judgment of the Appellate Court must be affirmed. Judgment affirmed.