RESPONSE TO PETITION EOR REHEARING.
Opinion by
Beatty, C. J., Lewis, J.,concurring.
In this case a petition for a rehearing has been filed, indicating that the original opinion herein has, to some extent, been misunderstood. Had counsel read the opinion a little more carefully, it appears to us at least a portion of the matter contained in the petition might have been omitted.
However that may be, we will endeavor to make ourselves more fully understood on some of the points referred to.
We did not hold, as counsel say, “ that the 239th Section of the Probate Act makes the settlement of an executor’s or administrator’s account final and not open to further question, except by bill in chancery charging fraud.” At least we did not hold it in the unqualified terms used by counsel. We distinctly held that the Court, notwithstanding the 239th Section, might, at any time before final settlement, correct its own errors, whether of law or fact. That any error apparent on the record might be corrected before final decree, but the Court could not open the proof as to the matters of account already passed on and settled by interlocutory decree.
It is the failure to notice this distinction which seems to have misled counsel in various particulars.
Counsel complain that this Court assumes that there never was but one settlement of the executor’s accounts upon notice, whilst in fact there were two such settlements. That they were injured by this assumption of the Court. That no such point was ever made by the opposing counsel, and if it had been, they could have shown that it was unfounded. That if the record fails to show both settlements it was not the fault of respondents, it having been made up solely under the direction of appellants.
*111The plaintiffs (appellants) attack certain payments and expenditures of respondents. The respondents say these expenditures cannot be inquired into, because they have already been passed on by the Probate Court. To show that they have been passed on by that Court, respondents refer to a decree which clearly shows that part of these items have been passed upon, but fails to show any adjudication as to other portions of the account. This decree is contained in the record' before this Court.
We certainly could not know that respondents had introduced evidence in the Court below which was not contained in the statement of the case, or that their answer contained matter not copied in the record. If the transcript failed to contain any portion of the evidence or pleadings material for the defense, it was the business of respondents’ counsel to have the record amended.
Reference is made in the petition to various expressions in the transcript which counsel seems to think indicate that there were two decrees actually made in the Probate Court in regard to these accounts. We think no one, not otherwise acquainted with the fact, would ever have drawn such inference from the record. All the expressions quoted are entirely reconcilable with the existence of but the single decree found in the record, except one word. The word decrees is used in one place wThere it should have been in the singular, (decree) if there was only one settlement. But when that word appears in the record, it seems to be shown by what immediately follows that the s was a mere clerical error.
The transcript is so badly made up, that we are at a loss sometimes to understand how certain matters got into it. The body of the answer, as contained in the transcript, makes no reference to any exhibits. But immediately after the affidavit to the truth of the matter contained in the answer follow the two accounts, and then this sentence: “ That upon the filing of the accounts such proceedings were thereafter had, that the Court rendered and entered the following decrees.” After this follows the decree settling the last account only. Then comes a statement of the evidence, etc. On the margin of these accounts is marked, “Answer continued.” We infer then that these accounts and this decree must have been attached to the answer as exhibits. But because the Clerk uses the *112plural, decrees, we could not well infer that there was another decree attached as an exhibit to the answer which he did not copy. Especially could we not so infer when the answer wholly fails to aver the existence of any such decree.
'But whilst the record utterly fails to show in any manner that there was more than one decree in regard to the settlement of accounts in this estate, we will so far modify our former opinion'as to direct the Court below to give to the first account, if it should appear to have been properly settled upon notice and a regular decree of settlement made thereon, the same effect that we have given to the second account, which was settled in March, 1865.
Whatever upon the face of the account and decrees seems to have been once adjudicated must be considered closed, except in so far as the record itself may show some error in the former decree. If it should appear that this first account was regularly passed on and settled, it will of course much abridge the extent of inquiry in any subsequent trial. We cannot, in the absence of what is claimed to be a regular decree, determine its character or sufficiency. To prevent misunderstanding, we will say the first item of the first account is for $1,480, cash on hand. The passage of this account would not prevent the appellants from showing there was cash on hand at death of testator other than or beyond the $1,480.
The next item is $3,578.75, rents. The passage of this account, with this item, does not preclude the appellants from showing that the executors may have received other rent, or rents, to a greater amount than $3,573.75. These are mere admissions of a general result, and do not purport to be items of account presented in proper form for adjudication of the Court.
With regard to the third item, $1,295.47, received from the settlement of partnership business, it is evident this also is the mere result of other accounts. It is not an account in such form as could properly be presented for settlement. The Court may properly go into an investigation of the accounts which produced this result, unless there was a former settlement with the Probate Court, and this is the balance found on that settlement. In the absence of such settlement, the Court may go back to the start, ascertain what amount of partnership property came into the hands of the execu*113tors, how they disposed of it, and what were the legitimate expenses to be deducted.
In regard to the items of expenditure for the estate as charged in this account, with the exception of the last item, $294.12£, they are all of such a character as might legitimately have been paid by the executors. And if it appears that this account -was regularly passed on, the law supposes satisfactory proof as to the payment of each item was made, and they are not the subject of investigation in this proceeding. If there was fraud, as insisted by appellants, in the charges for funeral expenses, etc., that must be reached by another proceeding.
As to the last item in this account, charged against the estate as money advanced, without any specification as to when, where, or for what advanced, we think it was error to allow it on such a vague statement. The executor should still be required to show for what this was paid and allowed, be such portion of it as they can show was properly expended.
In the beginning of the second account is a repetition of certain charges against the estate to the amount of $751, which were contained in the first account. We think the accounts themselves clearly show this error, and it is admitted by the executors. This can be corrected in the next settlement.
The intention of this Court in requiring the executors to file new accounts making a full showing of all the property and assets that have come to their hands, etc., was to have them file a statement, first, of the amount and value of the jewelry, watch, etc., which it is admitted came to the hands of the executors, or on.e of them, and was never placed in any inventory or account of the estate. Another was, to make them show the amount of partnership property which belonged to decedent, and the particulars as to the manner of disposing thereof, and the expenses of closing the partnership affairs, instead of merely returning the general result as netting $1,295.47. So, too, instead of the general return of $3,573.75 for rents for the first term of-months, the petitioners are entitled to an account of the items making up that general result.
It was not the intention of this Court to require that which had once been properly passed on to be reopened. With regard to the *114amount paid for the purchase of an “adverse claim to the real estate held as tenants in common by Medin and Milinovieh the deceased, we will repeat: as the executor chose to compromise this suit and buy in the outstanding title without asking leave of the Probate Court, (which was the only legal course he could have taken as executor) he must be deemed to have acted in that purchase not as executor, but as a tenant in common. Having then purchased in the estate as a tenant in common, his purchase inures to the benefit of all his cotenants unless they, upon a proper offer made to them, refuse to sanction the purchase and contribute their share of the purchase or compromise money. We have already said this is a matter which cannot be settled in a Probate Court. The parties must either settle this matter between themselves, or resort to the equity side of the Court to settle the difficulty.
It is claimed that petitioners have ratified this purchase by accepting the rents, etc. We can see no evidence of ratification in this. Respondents came into possession of one-third of the estate as representatives of deceased'. They can no more deny the title of deceased than a tenant can deny the title of his landlord. Upon the mere ipse dixit of the executors or their counsel that the adverse title bought in is a better one than that under which they formerly held, the executors cannot retain the share of rents belonging to the deceased. But we do not understand that petitioners wish to renounce the benefit of the purchase. They seem willing to pay their portion of the purchase money. The dispute is as to what was legitimately paid. The amount paid to the real holders of the adverse title is not questioned. Petitioners only question the propriety of large payments made, as they claim, unnecessarily, if made at all, to parties who neither had nor claimed to have any title to the property. The Probate Court can neither investigate the facts as to whether these outside payments were or were not made, and if made, whether made rightfully or without necessity and wrongfully. If the parties cannot settle this matter between themselves,, it must be settled in another Court. In the meantime the rents must be accounted for by the executors.
This Court ordered the interest items to be struck out, because *115it is unlawful for an executor (unless authorized by will) to borrow money for an estate. No state of proof could have justified the allowance of these items, therefore they were improperly allowed; and that is one of that class of errors which the Court may correct before final decree.
Counsel complain that whilst the Court fails to find fraud against the executor, it still uses many expressions calculated to place him before the community in a very unfavorable light. The Court, in its opinion, did intend to refrain from any expression of opinion as to the charge of fraud, but at the same time intended to express in language not to be misunderstood its disapproval of the reckless and wasteful manner in which this estate was managed, the utter disregard of law shown in every step of the management, from the death of the deceased to the commencement of this proceeding. It is the intention of this Court, so far as in its power, to put a stop to the waste and destruction of the estates of deceased persons; and we shall not hesitate to express our views of the law because it may injure the feelings of some executor or administrator who thinks that he is only following the common custom of the country, and therefore perfectly justifiable in squandering the estate that may come to his hands.
We again repeat what we said in our former opinion: that extravagance, waste and mismanagement of an estate afford the same ground for removal of an executor as absolute fraud.
A rehearing is denied, but the judgment is so modified as to direct the Court below to conform in its future proceedings to the views as expressed in the former opinion, and as modified in this response to the petition for a rehearing.