Gadberry v. Perry

Mr. Justice Handy delivered the opinion of the court. This was a petition filed in the probate court of Yazoo county, by the appellees, to surcharge and falsify the final account of the appellant as guardian of the appellee Mary Perry, a minor. The petition was filed within two years after the settlement was made, and sets forth various errors and false charges in the account, Avhich are sought to be corrected and falsified. The appellant demurred to the petition on the ground, 1st, that no new matter, arisen since the final settlement, nor new proof discovered, is shoAvn; 2d, that no fraud or other sufficient ground for setting aside the statement is shown by the petition. The demurrer was overruled, and this appeal taken. It is insisted, in behalf of the appellant, that the act of 1846, Plutch. Dig. 728, § 3, under which this proceeding was taken, does not authorize the review of a final settlement in the probate [117] court, except ill cases of error apparent in the account itself, or new facts, or facts discovered since the settlement was made; and that such a review can only be had upon a similar state of case to that in which a bill of review would be entertained by a court of chancery. The act referred to, in the first place, gives to the probate courts power to entertain bills of review generally, “in the same manner and according to the same rules as the same are entertained by courts of equity.” It further provides, that “ in proceedings for the final settlement of any executor, administrator, or guardian, any person interested may, by bill of review, open and cause to be examined by the court, any annual or partial settlement, &c., and surcharge and falsify the accounts rendered upon such annual or partial settlement; and any person interested may, at any time within two years after final settlement, by bill of review, open the account of any executor, administrator, or guardian, and surcharge and falsify the same,” &c. It appears to be clear from the provisions of this act, not only that the power to entertain bills of review, according to rules prevailing in a court of equity, was intended to be conferred on the probate courts, but also that that power should be exercised in all cases in which it would be competent for a court of chancery to entertain proceedings to surcharge and falsify an account, and to extend that power to the final settlements of executors, &c. These two subjects of chancery jurisdiction seem to be combined in one proceeding, by which the settlements of executors, guardians, &c. may be reviewed and surcharged and falsified within two years from the date of such settlements. Tested by the rules applicable to surcharging and falsifying accounts, we think this petition sufficient on that ground, and that the demurrer was properly overruled. The decree is affirmed, and the case remanded for further proceedings.