1. The statute of 1843, is very precise in directing the course to be pursued when an executor, administrator, or guardian, is cited to appear and file his account and vouchers for sottlement, and fails to obey the citation. The judge, upon such failure, is authorized to state the account, charging the party with such amounts as shall appear to have come to his hands. The judge is then to cause notice to be given to the executor, &c. that unless he appear at the next term of the orphan’s court thereafter, and file his account and vouchers for settlement, the account so stated by the judge will be reported for allowance, and settled as required by law. A proviso to the act directs, that if the executor, &c. at any time before the final decree upon the account stated by the judge, shall appear and file his accounts and vouchers for settlement, and shall pay such costs *566as may have accrued, the proceeding had in relation to the account stated by the judge shall be set aside, and the court is then to proceed to settle with the executor, &c. according to the general law. [Dig. 230, § 48.]
It is obvious from this enactment, that the guardian is entitled to notice that an account has been stated, by the judge, and it seems also, his appearance when the judge is stating this account, cannot relieve the court from its duty to give the statutory notice, or preclude the party from insisting upon the notice. It appears here, that the account was stated at the same term at which it was finally decreed. In this we think the court erred, and for this error the judgment must be reversed.
2. Upon the question raised on the evidence, we should incline to think it sufficient, even in a condition of things which would allow the guardian to controvert the charge, but it deserves consideration whether the party in contempt by refusing himself to state an account, will be permitted to contest that stated by the judge under the provisions of the statute just quoted.
3. Tnere is another matter in this cause, to which it is proper to call attention. The guardian is cited to a final settlement with his ward, who is described in the record as still being a minor, and there is nothing to show the guardian has been removed from his trust. Under these circumstances, it certainly admits of question, whether a final settlement can be made, and more especially, whether there is any warrant to decree a sum due to the ward, to be paid to the register of the court, whether the decree is on an annual or final settlement.
Judgment reversed and cause remanded.