This was a bill in equity filed in August, 1876, by the heirs of Patrick Clark, deceased, against the appellant, Charles Eckley, who was the administrator of the estate, and his sureties on the administrator’s bond, for the purpose of impeaching a final account filed by the said administrator on final settlement of the estate November 21, 1872, and to compel the administrator to render an account for various items not accounted for, and to estimate from this account on the credit side various items which, as appellees claim, were erroneously entered therein.
The bill was demurrable for failure to charge fraud on the part of the administrator, but as it was answered without objection we will treat it as though the account was being re-stated properly. The first error that was committed by the court below ivas in not holding that the final account was prima faoie correct, and in not casting the burden of proof on the appellees to show its error, the account having been approved by the County Court.
The cause upon the coming in of various answers and defaults was referred to the master with instructions to him to take the evidence and state an account. The master complied with the order and took the evidence and stated the account, to which both the appellants and appellees filed exceptions, which exceptions were carried into the Circuit Court, and upon the hearing of such exceptions by the Circuit Court that court rendered a decree against the appellants for $894.84, consisting of $523.27 as principal, and $371.57 interest, beihg from November 2, 1872, to September 25, 1884.
The first claim charged to the administrator is $50, paid by John Clark; this item had already been credited to the estate, as he swears, in an item of $54, as his report shows. The legal presumptions are also in his favor, and this is erroneously charged to him. The next is the amount of the judgment of the administrator v. Francis Clark, which he claims to have paid to the administrator, of $273,35. The appellees having the burden of proof to establish this claim, failed to overcome such presumption and the testimony of appellant to the contrary, and we think the proof does not establish that Francis Clark ever paid it. It is not necessary to .go into a full examination of the evidence. We are well satisfied that the full claim of Mrs. E. Eckley, of $401.84, paid her by the administrator, should have been allowed him. The evidence entirely fails to- show that appellant Eckley had any funds with which he could have paid such claim at the time Mrs. E. purchased it, and it does show that she purchased it with her own funds and she was entitled to charge the entire claim, principal and interest. It was error then to deduct from the administrator’s charges an account of such payment, $66.47, the amount Mrs. E. discounted the claim in her purchase.
We find nothing in the evidence to impeach, in any way, the correctness of the two claims of Hannah Shanks of $18 and $15 to the amount allowed, and that would authorize their reduction to $10 each, which was done; one receipt shows she was paid $10, and the other $15, and only one should be reduced to the amount of $8. There is no evidence to show that the two payments to Thomas Clark of $10 each were duplicates, or that the two attorney’s fees of Talliaferro for $10 each were duplicated. Unless such evidence clearly showed them to be duplicates, the presumption would be that the report was correct.
The reducing of the crier’s fee to $3 is correct; as Hutchins swears he cried but one sale, hence the charges must be duplicated and the law only allowed $3 fee for such services.
The striking out the allowance of the administrator by the County Court, of $50 for expenses in settling the estate, was error, as by the law then in force the County Court had the discretion to make the allowance, and that discretion could not now be interfered with by the Circuit Court. See Sec. 175 Chap. 109, Wills, Gross’ Statute, 1868. There may have been a mistake in favor of the administrator of $7.65 in calculating interest on the last real estate note. As to that, as the evidence was not fully abstracted, it can not now be fully determined nor can it be fully determined what effect the nonpayment of a portion of the lost note had on it. We leave that matter to be adjusted by the court below upon final hearing as it may determine.
The court below did not err in refusing to allow the interest claimed by appellees, there being no sufficient evidence to support such a charge.
Although the Statute of Limitations may not have run against this action, yet where years have been allowed to elapse before commencing suit to compel a re-adjustment of account, the evidence should show clearly that the settlement was erroneous, and all presumption should be indulged in favor of the administrator and his securities. They are taken at great disadvantage by this long delay. Of course it was error to order execution against the administrators of some of the sureties who have died, but that can be corrected on another hearing; so it is not necessary to make any further order concerning that matter.
The decree of the court below is reversed and the cause remanded to the court below with instructions to proceed in accordance with this opinion.
Reversed md remcmded.