
    Boyd Executor of Hoskins v. Kaufmans.
    Decided, Dec. 18th, 1817.
    
    i. Administration Account-Settlement Certified after Executor's Deaths — Effect.—A settlement of an Executor's administration account, certifled by Commissioners on a day subsequent to bis death, and not appearing to have been ma.de in his lite time with notice to himself, nor. after his death, with notice to his executor, is erroneous, and ought not to be received as the ground of a decree against his estate.
    a. Devastavit-, what Constitutes."' — Quaere,—if an Execute r die indebted to the estate of his testator, without any judgment or decree against him for the balance due; and his executor, without notice of such debt, apply the assets of his estate to the paymentof debts of inferior dignity; — is he guilty of a devastavit?
    See K. Code of 1811), c. 103, § 60.
    Richard Kaufman and John Gresham and Jane his wife, children of John Kaufman deceased, filed a Bill in the Superior Court of Chancery for the Williamsburg District, against Robert Boyd, Executor of William Hoskins, who was executor of the said John Kaufman, for an account of assets, and recovery of whatever balance might be due to them as residuary legatees. With the Bill, was exhibited an cx parte settlement of the administration account of William Hoskins executor of John Kaufman, said to be “in pursuance of an order of the County Court of King and Queen,” and certified by the ^Commissioners July 14, 1800, shewing a balance due from him to the estate of his testator, of 1121. 4s. Id.
    The defendant in his answer alledged, that he had never received any assets of Kaufman’s estate; that he had paid away to creditors the assets of the estate of Hos-kins, without notice of the claim of the plaintiffs; and did not admit that any thing was due to them. To the Answer was annexed an ex parte settlement of the defendant’s account as Executor of Hos-kii s, shewing a balance due to him of 61. 0. lOd. By a Copy of the Will ot Hos-kins, it appeared that he was dead when the statement of his administration account was made; his Will being dated December 8th, 1799, and admitted to probate, February 10th, 1800.
    The cause was heard on Bill, Answer and Exhibits only; whereupon Chancellor Nelson decreed, that the defendant, out of his own estate, pay, to each of the plaintiffs, 561. 2s. 0d., with Interest from the 14th of July 1800, and Costs.
    In a Petition of Appeal, this decree was said to be erroneous, 1. because the report of Commissioners, of July 14th 1800, was made ex parte, and without notice, and did not appear to be warranted by any order of Court appointing Commissioners; 2. because the Decree was founded on the erroneous opinion, that an Executor is liable for debts due from his testator as Executor, without notice of such debts, and that, without such notice, the payment of debts of inferior dignity is a devastavit;— and 3. because the Chancellor should have directed an account to be taken, and should not have decreed against the defendant personally.
    Wickham for the appellant.
    Green for the awpellee.
    
      
       See monographic noie on ''Executors and Administrators" appended toKosserv. Depriest, 5 Gratt. 6.
    
   December 18th,*1817,

JUDGE ROANE

delivered the Court’s opinion. The Court is of opinion, that the decree is erroneous in this; that the settlement, on which the said decree was founded, was made after the death of W. Hoskins the executor of John Kaufman, and without notice thereof to the appellant his executor. As the case now appears, therefore, the estate of the said Hoskins may owe nothing '’'to the appellees; nor can we say from the case, as it now appears, that the appellant' was not justified in administering the estate of his testator, as, from his account, it appears he has done. But, as the appel-lees may have been diverted from establishing their claim by other testimony, by the erroneous opinion ol the Court of Chancery in relation to the settlement aforesaid, they ought now to be permitted to establish the same by such other evidence as may be in their power, and also to falsify the ex-ecutorial account of the appellant, among1 the proceedings, if they shall be able to do so.

The decree is therefore reversed with costs, and remanded, to be proceeded in pursuant to the principles of this decree.  