Light's Appeal

The opinion of the Court was delivered, January 10, 1854, by

Black, C. J.

The executor of Jacob Haars, deceased, filed a partial account of his administration, which was referred to an auditor to be examined. Some of the distributees (not the present appellants) excepted to the report because the executor was not charged with- interest on the fund in ’his hands. These exceptions were afterwards withdrawn and the report confirmed. An auditor was then appointed to make distribution, and he appears to have been attended by all the parties. After much controversy between the different claimants, a decree of distribution was made, and the appellants enforced payment of their share by attachment. Next, the executor filed his final account, which was excepted to by the. appellants on the ground that no interest was charged on the money which the first account showed the executor to have had. The auditor and the Orphans’ Court overruled this exception, *448and refused to inquire whether the accountant had used the fund and made profits out of it, because it was not, in their opinion, an open question, but had been conclusively settled by the decree in the first account. This appeal is taken- to test the correctness of that decision.

It is well established that an appeal does not lie to the confirmation of any except the last administration account. There is hut one final -decree between the executor and the distributees or creditors, all others being merely interlocutory. However numerous the accounts are, the whole series are treated as one, and the last opens all the rest. An executor may be charged with interest on a final settlement though he has, in a previous account which is already confirmed, charged himself with the principal without interest. Whatever has been improperly omitted from any of the previous accounts, whether charges or credits, can he put into the final one. But the right of a distributee to except to a partial as well as to a final account is incontestable. When this is done, the subject-matter of the exception must he fully heard, and the liability of the accountant, with reference thereto, must he accurately ascertained. Of course, this is not a mere idle ceremony which concludes nothing. The duty of the Court to hear implies the power to decree authoritatively; and therefore the same dispute cannot he renewed again before the same tribunal, unless by hill of review. When the parties who are interested in surcharging or falsifying the accounts come into Court with exceptions to a partial account, and afterwards solemnly and unconditionally withdraw them, they should not be permitted to make the same exceptions again to a subsequent account. Such withdrawal of exceptions, and permitting the account to be confirmed, is an admission of record that the account is right in the particulars to which the exceptions relate. It is, and ought to he, equivalent to a retraxit in a common law action. But to give if that effect, it must be the act of all the parties interested. Certainly one person who has an interest cannot, by filing and withdrawing an exception, estop another who has a similar but a distinct interest.

These principles are decisive of this case. The appellants, by an exception to the final account, say that the executor ought to he charged with interest on upwards of fifty thousand dollars, which he had in his hands and used for his own profit and advantage during a period of several years. If this he true, the exception ought to have been sustained. We are bound to investigate, the justice of the claim, and to hear the proofs which may be offered in support of it. The appellants never did, nor omitted to do, anything which should prevent them from being heard. They-filed no exceptions to the first account, and the question now’ raised was never decided by the Court on the exceDtions filed by. *449others. As to them the confirmation was ex parte. They had notice, probably saw the account, and might have appeared if they had thought proper. But that is nothing; for if notice to the parties would make the confirmation of a partial account conclusive, then all would he conclusive, and every authority on the subject would be overthrown. They demanded and took the sums respectively due to them, on the distribution of what the first account showed to be ready. But this was given to and received by them expressly as a partial payment, and not as their shares of the whole estate. The receipt of the principal, to which they had an acknowledged right, is no reason why they should not demand the interest if they have an equal right to that. Receiving part of a just claim,-if not accepted in full satisfaction, is no bar to the recovery of the balance. In many, indeed in mostreases, such evidence makes very strongly the other way. Here, however, it had no effect at all.

There is another view of the case. If the present appellants had filed exceptions to the first account, and the Orphans’ Court had then decided the present question against them, that Court might have been right enough in refusing to decide it over; but would not an appeal to the final decree bring up the whole case before us ? And would it not be our duty to correct all the errors; those which were made in the interlocutory decrees as well as others ? The party against whom such a matter is decided by the Orphans’ Court is entitled to his appeal, let the decision be made when it may. If it he heard and decided when a partial account is confirmed, he cannot have his appeal then. . It must be, therefore, that he can have it reviewed after the final decree.

I will only add, by way of preventing future misconstruction, that it is in consequence of very peculiar circumstances, that we have determined to treat the two appeals in this estate as separate and'distinct cases. The decree we have already made on the subject of the executor’s commissions settles that without affecting the point made here. But let no man presume on this as a precedent.

The decree of the Orphans’ Court is reversed, and the accounts of the appellee, as executor of Jacob Haars, deceased, are referred to the auditor of this Court, who is directed to hear the parties, and to report whether the executor should be charged with interest or profits on money of the estate, and if so, to what amount.