Estate of Berryhill

Seevers, J. — We do not understand that the question of the amount of compensation to be allowed the executor for his services as such is presented by counsel. On the contrary, the sole question to be determined relates to matters which occurred during the time Mrs. Berryhill was guardian ;■ the claim being that, during such time, the appellee, 'through deception, or by the use of undue influence, procured to be charged in the accounts of the guardian, and allowed against the estate, certain expenditures which were personal expenses of the appellee, and that the same should not have been allowed as credits to the guardian. The question presented by the demurrer and argued by counsel is, whether the matters stated in the petition can be determined in this proceeding. The appellee is the executor of the estate of J. II. Berryhill, and, as such, presented to the court his final report", and asked to be discharged. To'such discharge the appellant objects, not because his accounts, as executor, are not correct^ but, because, during the time Mrs. Berryhill was guardian of J. II. Berryhill, the appellee procured said guardian to [349] wrongfully credit lierself with certain moneys, which were received and expended by the appellee for his personal benefit. "While it does not certainly appear on the face of the petition that the guardian has made her final report and been discharged, such fact we understand to be conceded by counsel for the appellant, and the arguments have been made on that basis. This being so, the proper time to object to the report was before it was confirmed by the court and the charges therein made and allowed against the estate. Possi-' bly the guardian’s report may, after the confirmation, be attacked and set aside, or the confirmation modified in a direct proceeding; but no such relief is asked. So far as the guardian, then, is concerned, the confirmation of the report must be regarded as an adjudication binding on the parties. Patterson v. Bell, 25 Iowa, 149; Cowins v. Tool, 36 Id., 82; Kows v. Mowery, 57 Id., 20. But it is said, as the appellee procured the guardian to credit herself and charge the estate with certain' moneys which he appropriated to his own use and benefit, he must account therefor • in this proceeding. The question is not before us whether the appellee is individually responsible, but whether he is liable as executor. In the latter capacity, he is only liable for the property which came into his hands as such, and he cannot be compelled to^ account for any more. The presumption should be indulged that the appellee, like other executors, gave a bond with sureties for the faithful performance of his trust. Now, clearly, the sureties on his bond as executor could not be held liable for the acts of the appellee during the time Mrs. Berryhill was guardian. If the appellant has a cause of action against the appellee, it is in his individual capacity, and must be so enforced. She has no claim against him as executor, and yet she seeks to make him account in that capacity. This, we think, she cannot do. Aeeirmed.