
    Fanny Ray et al v. Ray, Admr. et al.
    Commissioner’s Report — Judgment of Court — Appeal and Error.
    Where a commissioner finds against a defendant, contrary to the rules given by the trial judge in referring matters to the commissioner for an equalization among heirs, such part of the commissioner’s report as is violative of the judgment of the presiding judge, will be set aside by the appellate court, on the face of the pleadings.
    APPEAL EROM GARRARD CIRCUIT COURT.
    January 13, 1868.
   Opinion oe the Court by

Judge Williams:

In the judgment rendered August 31, 1865, the Circuit Court, among other directions to the commissioner as to the manner of dividing the land among the heirs so as to equalize them, says that it is "of opinion that Zach. Ray sjiall not be charged with rents for 186U and 1865 ” yet as the commissioner to whom had been referred the question of advancements Had found and reported as to Zacb. for negroes, Horse, furniture, etc., $1,030; rent for 1864, $200, and for 1865, $125, making $1,355, tbe subsequent commissioners appointed to equalize tbe Heirs and divide tbe land, took tbe report of tbe former commissioner without observing tbe direction of tbe court, Hence tbe error; as. there is no appeal from tbe judgment of tbe court disallowing tbe rents for 1864 and 1865, we now think that these rents should be disallowed in toto, and that tbe land should'be assigned appellants on tbe basis of an advancement of $1,030 to Zacb. Kay, instead of $1,355; and tbe opinion of tbe court is so modified as to direct another allotment of tbe land to appellants on tbe basis of an advancement to Zacb. Ráy by bis father of $1,030, and that what may be coming to him over this sum in land be assigned to appellants, observing tbe directions of tbe Circuit Court that tbe personal estate is not to be included in this division, save that small sums may be used to equalize tbe different allotments of tbe land.

Bradley, for appellant.

Dunlap & Anderson, for appellee.  