
    *Street’s Heirs v. Street.
    January, 1841,
    Richmond.
    (Absent Brookk, J.)
    Executors and Administrators — Settlement of Account — Examination of Vouchers. — An administrator’s account of administration having been audited by commissioners oí a county court, and the account being- controverted in a court of chancery, and referred to a commissioner of that court, the administrator’s vouchers, being ostensible, must be produced if required, and submitted to the examination, not of the commissioner only, but of all parties interested.
    Same — Ex Parle Settlements- — Effect as Evidence in Suit by Administrator against Heirs for Reimbursement. — An administrator’s account, settled ex parte by auditors, reported and recorded, shews that the personal assets have been exhausted, and that the administrator has paid out of his own funds debts of his intestate due by specialties binding his heirs ; upon a bill in chancery by the administrator against the heirs, to be reimbursed the amount of such specialty debts so paid by him out of his intestate’s real estate : Held, the audited account is not evidence at all against the intestate’s heirs ;
    Same — Same—Acknowledgment by Some of Heirs That Account is Just —Effect as to Others. — And though some of the heirs acknowledged in writing that the audited account was just, such acknowledgment will not suffice to establish it against the others ; and if such an account he not established as against all the heirs, it cannot avail as to any.
    Wiils — Full Probat- Right to Controvert as a Will of Lands after Seven Years. — A will devising or charging lands is admitted to full probat. without proof appearing in the sentence of pro bat, that it was duly attested by witnesses, or that It was wholly written by the testator : Held, that according to onr laws and course of judicial decisions, the will cannot be controverted as a will of lands after the lapse of seven years from such full probat:
    
      Same — Probat—Effect Where Sentence Shows Will . Not Duly Executed to Pass Lands — Quaere, as to Personalty. — But if the sentence of probat distinctly shews that the will was not duly executed to pass real estate, cjnere whether the sentence of probat, "though general, ought not, in such case, to be understood in the restricted sense of declaring the instrument a good will of personalty only ?
    John Street the younger died intestate in the year 1797. His father John Street the elder was his heir at law. Administration of his estate was granted by the county court of Hanover to his brother Parke Street.
    *John Street the younger had been in his lifetime, for some years, a deputy sheriff of the county of Hanover. He died indebted on account of sundry liabilities which he had incurred in his official character, and otherwise indebted by specialties binding his heirs. He owned at his death some lands in the states of Ohio and Kentucky and a lot in the city of Richmond, which descended to his father as his heir at law. His personal estate, which qame to the hands of his administrator, was comparatively trivial, so that a very small portion of his debts could be paid out of it; yet the administrator paid all the debts, upon the faith, as he alleged, that he was to be reimbursed out of his intestate’s real estate.
    John Street the elder died in 1801, having made a will, wherein he devised as follows —“Whereas a considerable portion of the estate .of which. I am now seized and possessed, is held by me as heir at law of my son John Street the younger deceased, being lands in the state of Virginia and other states of the Union, and the estate of my said deceased son being in an unsettled state, and it being uncertain how it will •close, that is, whether his personal estate will be sufficient to discharge alt his just debts or not; it is my will and desire, that if his personal estate shall not be sufficient to discharge all his just debts, so much of the real estate of which I am possessed as his heir at law as will be sufficient fully to discharge his debts, even if it takes the whole of it, be sold by my executors as they may think best, and applied by them to the discharge of his debts; but should the estate heired by me as aforesaid, not be sufficient to discharge the debts of my said son John, in that case this clause is by no means to be construed to subject the estate possessed by me independent of such heir-ship to the payment of the said debts.’’ He appointed his sons William, Parke, George and Anthony Street his executors. And the will being offered by the executors for probat in the county court of Hanover, *in March 180Í, it appeared by the sentence of probat, that ‘1 the said will having no subscribing witnesses thereto, three of the sitting members of the court were sworn and examined, and thereupon declared, ’■hat the signature of John Street subscribed at the foot of the said yvill was, from their acquaintance with the handwriting of the said John Street, to their full belief, written with the proper hand of the said John Street; and the same was thereupon ordered to be recorded.’’ It appeared by the evidence in this cause, that, | in fact, the body of the will was not wholly written by the testator, but was written for him by his son Parke Street; so that the will, though admitted to full probat in general terms, was not duly executed as a will of real estate.
    John Street the elder left six children, his heirs, devisees and legatees; namely, his four sons abovementioned, and two daughters, Sally Street and Hannah the wife of William Brown.
    In September 1819, the county court of Hanover appointed commissioners to audit and settle Parke Street’s accounts of administration of the estate of John Street the younger; and on the 29th of that month, the auditors settled and reported an account, whereby it appeared, that, after crediting the estate with all the personal assets that came to the hands of the administrator, and debiting it with all the debts which he had paid, including the debts which his intestate had contracted in his official character, and his other debts by specialties binding his heirs, there was a balance due to the administrator of 4876 dollars. The account referred to vouchers for every item of debit. George and Anthony Street were present at the settlement before the auditors, and subjoined a note at the foot of the account so stated, that they were satisfied it was correctly settled, and that the balance of 4876 dollars was justly due from the estate to the administrator; and William Stfeet, who was not present at the settlement, afterwards subjoined a note *on his part to the same purpose. And the account being returned to the court, with these acknowledgments of its correctness thereto subjoined, was in October 1819 ordered to be recorded.
    In 1826, Parke Street exhibited a bill in the superior court of chancery of Richmond against his brothers and sisters, William, George, Anthony and Sarah Street, and Hannah the wife of William Brown; in which he set forth (inter alia) the death of John Street the younger intestate, the grant of administration of his estate to him, the nature of the debts due from that estate, the payment thereof principally by himself out of his own funds, the provision of the will of John Street the elder subjecting the real estate he had inherited from his son John to the payment of the son’s debts, and the account of administration of the estate of John the younger settled and reported by the auditors of the county court; and the general purpose of the bill was, that the real estate of John Street the younger, which had descended to his father the testator John the elder, should be subjected to the payment of the balance of 4876 dollars appearing due to the plaintiff on his account of administration of the estate of John the younger, and that the same should be sold and the proceeds applied to the payment of that balance.
    The defendants, in their answers, mentioned, that the will of John Street the elder was in fact written for him by the plaintiff Parke Street; but they did not impugn the validity of the will as one not duly executed and published to pass, or to create a charge upon, the testator’s real estate: they referred to the language of the provision for the payment oí the debts of John Street the younger, stating that “it was uncertain whether the personal estate of that decedent would be sufficient to pay his just debts,” as evincing that the testator thought, and that Parke Street the draftsman knew, that the amount of debts of that estate beyond the personal assets '^thereof, could not have -been so large as the administrator now alleged it to have been, and as affording reason to suspect and to contest the fairness of the account settled and reported by the auditors of the county court. They stated several specific objections both to the principles and the details of that account; and insisted, that the unjust charges and omissions in the account should be corrected, and the just balance due the administrator ascertained. And the defendants George, Anthony and William Street said, that their acknowledgment of the correctness of the account was made without any examination of it, and was induced by the (unmerited) confidence they reposed in their brother.
    The court referred the accounts to one of its commissioners, with general directions to examine, state and report the same.
    When the commissioner came to execute this order, the defendants insisted, that he ought to examine and state the accounts of the plaintiff’s administration of the estate of John Street the younger, de novo from the commencement, upon the vouchers to be produced by the administrator, without regard to the account stated and reported by the auditors of the county court. But the commissioner thought it proper to make that account the basis of the account to be stated by himself, and to take it as correct, except in such particulars as the defendants should surcharge and falsify it. The defendants then insisted, that as the plaintiff’s vouchers were ostensible, and were indeed filed in the commissioner’s office, they ought to be submitted to their examination, in order to enable them to surcharge and falsify the account by a comparison thereof with the vouchers. But though the plaintiff had preserved alt the vouchers, though he had in fact filed them in the commissioner’s office for his examination, and though they were examined by him, yet he insisted, that he was not bound to produce them, to sustain the account *stated and reported bj' the auditors of the county court and recorded by the court, and that the defendants had no right to examine them, as to any particulars in which the account was not impeached by their proofs; and the commissioner being of this opinion withheld the vouchers from the view and examination of the defendants.
    Proceeding on these principles, the commissioner stated the account, by correcting trivial errors in the account stated by the auditors of the county court, some for and some against the administrator, and bringing the account down to the date of the report. It appeared by the commissioner’s report, that all the debts of John Street the younger, which had been paid by the administrator Parke Street, and charged by him to the estate, were debts due by specialties binding . the debtor’s heirs, except debts to the amount of about 114 dollars, and that personal assets exceeding that sum were credited to the estate; so that the whole balance claimed by the administrator was due to him, in effect, on account of debts of his intestate paid by him, which were due by specialties that bound the intestate’s real estate. And the balance reported to be due to the administrator was 5257 dollars with interest on 2796 dollars part thereof, being principal, &c.
    The defendants filed exceptions to the report in respect to several details of the account. And they especially excepted to it, on the ground that the commissioner had refused to allow them to examine the plaintiff’s vouchers, which were laid before him, which he inspected and examined, and to which he made references in his report; an exception which went to the whole report.
    It appeared by subsequent proceedings in the cause, that the whole real estate of John Street the younger was not sufficient to pay more than about one third of the balance reported by the commissioner to be due *from that intestate’s estate to the plaintiff his administrator.
    Upon the hearing, the chancellor, overruling the defendant’s exceptions to the commissioner’s report, directed a sale of the lot in Richmond, parcel of the real estate of John Street the younger; which was sold accordingly, and the net proceeds of the sale were only about 1550 dollars. Whereupon, the chancellor decreed, that that sum should be paid to the plaintiff, in part discharge of the debt ascertained to be due to him from the estate of John Street the younger for which the real estate of that decedent was bound. From which decree the defendants appealed to this court.
    Lyons and Johnson, for the appellants,
    1. maintained, that the course of the commissioner was wholly unwarrantable. If the account reported by the auditors of the county court, on which the appellee’s claim was founded, had really been an account of his administration of his intestate John Street the younger’s estate, yet the vouchers on which the auditors stated the account being ostensible, the appellants would have had a right to require the production of them before the commissioner, not only for the purpose of enabling the commissioner to examine them, but especially for the purpose of enabling the parties themselves to examine and scrutinize them. The leading authority for taking administration accounts settled and reported by auditors of the county court as prima facie evidence, and for dispensing with vouchers to sustain those accounts when the vouchers are not ostensible in consequence of lapse of time, distinctly admits, that when the vouchers are in the administrator’s possession, they must be produced if called for. M’Call v. Peachy’s adm’r, 3 Munf. 288, 305. Here, the administrator’s vouchers were in fact laid before the commissioner; and the only question was, whether they were examinable by the commissioner '*alone, and the parties interested had no right to see and examine them? Surely, the parties had a right to see or hear all evidence that could affect their interests in the cause. But, they said, the account reported by the auditors of the county court in this case, so far as it went to establish a claim for the appellee against the real estate of his intestate, was not, properly speaking, an administration account. The whole personal estate was trivial, and had been exhausted; and when exhausted, the administration was complete. The claim of the administrator to be reimbursed out of his intestate’s real estate, the amount of specialty debts binding his heirs, which he had paid, not out of the personal assets, but out of his own funds, was a claim to be subrogated to the creditors whose demands he had satisfied; and though the account reported by the auditors of the county court might have been prima facie evidence against other creditors or the distributees of the intestate, it was not evidence at all against his heirs. Mason’s devisees v. Peter’s adm’r, 1 Munf. 437. The chancellor, then, ought to have set aside' the report, and recommitted the accounts with instructions to expose the vouchers to the view and examination of the appellants. 2. They made the point, that the will of John Street the elder, which was not attested by any witnesses, and of which only the signature, not the whole will, was proved to be in the testator’s handwriting, was not effectual to pass, or to charge, his real estate. The sentence of the county court admitting the will to full probat upon such defective proof, and the defect of proof appearing in the sentence itself, could not make it, what by law it manifestly was not, a good will of real estate. Therefore,the appellee could not found any claim on the provision in the will, whereby the testator subjected the lands he had inherited from his son John to the payment of the son’s debts.
    *R. T. Daniel and Beigh, for the appellee,
    thought it could hardly be maintained, that wherever an administration account reported by auditors of a county court, shewed that the administrator had administered and exhausted the personal assets, and paid other debts of his intestate out of his own funds, the account, to the extent of his payments beyond the assets, was not an administration account, such as the county court had authority to refer to auditors, and the auditors, upon a general reference of the administration account, to settle and report. But granting that the commissioner allowed an undue weight to the auditor’s account, and that he erred in refusing to open the vouchers to the scrutiny of the appellants, yet the error was, in the actual case, rather formal than substantial. Bor, they said, it appeared by the report, that in respect to every disputed item of the account, the commissioner reported, all the evidence appearing in the vouchers. And the account shewed too plainly for cavil, that a much larger sum than the net proceeds of the sale of the lot in Richmond, which was all the chancellor had yet decreed to the appellee, was and must be due to him, and justly chargeable on his intestate’s real estate. Neither can the correctness of the audited account be reasonably' questioned, seeing that the three brothers of the plaintiff, all men of full age, deliberately acknowledged its correctness, and that the balance thereby' reported to be due him was justly' due. Taking all this into consideration, they submitted that the decree ought not to be reversed, so far as it decreed the net proceeds of the Richmond lot to the appellee, though it might be proper to recommit the report, in order that the accounts might be more fully scrutinized, before any further sum should be decreed to him out of the Ohio and Kentucky lands.
    2. They said it was quite too late now', to raise the question whether the will of John Street the elder w'as a good will of lands. The will had been admitted to *full probat, as early as 1801; and according to our law's, the sentence of probat, however erroneous in fact, could not be.,contested after the lapse of seven years. Bagwell v. Elliott & wife, 2 Rand. 190; West v. West’s ex’ors, 3 Id. 373, 378-9, 386; Nalle v. Eenwick, 4 Id. 585, 588-9; Vaughan v. Green, 1 Beigh 287. And none of the parties in the cause had controverted the validity of the will in any respect.
    The point, however, was immaterial in the present case; since, independently of the provision in the will of John Street the elder, the lands of John the younger in the hands of his heir, were subject to his debts by specialties binding his heirs, which the administrator had paid, and which therefore he was entitled to have reimbursed fo him out of his intestate’s real estate.
    
      
      PARKiiR, J.. was dead, and Allen, .1., had not been appointed when the cause was argued.
    
    
      
       Executors and Administrators — Ex Parte Settlements — Effect as Evidence of Overpayments. The ex parte settlements of executors or administrators are not evidence of overpayments by them, or that the claims stated m such accounts were debts justly due by the deceased, and if an executor or administrator, after exhausting the assets which properly came into his hands, pays debts of the decedent out of his own estate, he can only claim to be substituted to the rights of the creditor, and must prove his demand by the same kind of evidence that would be demanded of such creditor. Heavell v. Smith. 99 Va. 379, 38 S. E. Rep. 808, 7 Va. Law Reg. 191. citing Street v. Street, 11 Leigh 498. See also, citing the principal case on this question, Brewis v. Lawson, 76 Va. 40 ; Robertson v. Wright, 17 Gratt. 540, and note.
      
      See generally, monographic note on "Executors and Administrators” appended to Rosser v. Depriest, 5 Gratt. 6.
    
    
      
       Wills — Probat - - Conclusiveness. — The principal case is cited in foot-note to Parker v. Brown, 6 Gratt. 554 ; Ballow v. Hudson, 13 Gratt. 678 (see note).
      
    
   TUCKER, P.

The principal question in this cause is as to the weight and influence of the audited account; and it only requires that we should advert to the real character of the case, to enable us to see that it is entitled to none. It was not even evidence between these parties in reference to the object and purpose of the suit.

The bill is filed by an administrator, who alleges that he has made large advances for the estate, over and above the assets, and seeks to charge those advances upon the realty in the hands of the heirs. His claims upon the real estate are not then executorial; and they can only be sustained by regarding him in his true light, and substituting him to the rights of the creditors whom he has paid. He stands in their shoes, and must establish his demand precisely as they must have done. Had the bill been filed by' the creditors themselves, they must have shewn, 1. the liability of the realty' to their demands, and 2. the amount of those demands. Then, admitting the first, how is the second to be established? Certainly not by the settlement of the ^administrator’s account by auditors. That settlement grows out of the obligation of the administrator’s bond, that he shall settle his account of the administration of the personalty when required. That settlement is made with the court, in their character of a court of probat, having jurisdiction over the personal estate of decedents only. They have no farther power than to audit, settle and allow the disbursement of that estate by the administrator. The limit of their authority is the amount of the personal estate. The question ■whether the administrator has paid beyond the assets, so as to entitle him to charge the realty, is, as to that court, coram non judice; the only modes of settling that question being by the agreement of the parties, by action at law, or by bill in equity. With the settlement before auditors, the heir as such has no concern, nor can such settlement be evidence against him either prima facie or otherwise. IOven a judgment against an executor is no evidence against the heir, of the justice or amount of a creditor’s demand; it is res inter alios acta. 1 Muuf. 437. A fortiori it would seem, that the ex parte report of auditors, appointed only to settle the disbursements of the personal assets, cannot be so. The account in this case, then, was no evidence before the commissioner of the court of chancery, except so far as the acknowledgment of the brothers made it so. But in that acknowledgment the sisters did not join, and it did not therefore bind them. Therefore it could not avail the administrator; for he could have no decree for a sale of the realty without establishing- his demand in such mode as would bind all the heirs. It is like the case of a confession of judgment by one of two joint obligors, and a successful defence of the action by the other; in which case, the confession avails nothing, and judgment is entered for both defendants. The demand is entire, and if disproved as to one, is disproved as to all, the confession to the contrary notwithstanding. The application of the principle seems peculiarly proper in the present case, as the confession seems to have been dictated by am overweening confidence of younger brothers in the superior intelligence of an elder brother.

If the audited account be altogether rejected, it is not necessary to say any thing of the unjustifiable course of the plaintiff and the commissioner. But, as a matter of practice, I think it behooves us to express our decided disapprobation of that course. Where the vouchers are ostensible, as they were clearly shewn to have been in this case, the defendants have a right to call for them. Admit the account to have been prima facie evidence, still it was only prima facie evidence. The defendants had a right to controvert it. Had they not a right to call for the evidence in the possession of the plaintiff, to enable them to controvert it? By what rule or principle of law were the defendants excluded from the right to demand, tüat the plaintiff should produce the evidence which he had in his pocket in support of his account, in order that it might be seen whether the items were or were not sustained by the vouchers? I know of none.

But the commissioner had the examination of them, though they were denied to the parties. When has this sort of secret inquisition been introduced into the proceedings of our courts of justice? What court would receive as evidence, and act upon, a paper offered by one party, or suffer it to go to a jury, without the inspection or examination of the other? As well might the commissioner have examined in secret a witness offered by the plaintiff to prove his demand, and have sent the defendants out of his office, thus depriving them of the power of objection, contradiction, and cross examination. His course in this case is as novel and unprecedented, as it is incompatible with those first principles of judicial proceeding, which secure to every party the right of being confronted with the witnesses, *of knowing the nature of the allegations against him, and of seeing and hearing the evidence by which they are supported. Of what use would be the privilege of excepting to the opinion of a court or the report of a commissioner, if the evidence upon which they have acted be scrupulously hidden from the eyes of the party complaining? It would be practically of'no effect; and it is indeed matter of surprise, .that, at this day, such an instance should be afforded of a violation of the most familiar principles, as this record presents.

I am clearly of opinion, then, that the decree in this case should be reversed, and the cause sent back to the commissioner, with instructions to disregard the audited account of the Hanover commissioners, and to report the amount and character of the plaintiff’s claim against the estate of John Street the younger, whether in his own right, or as substituted for the creditors whom he has paid.

Another question however presents itself, which it is important to settle. The will of John Street the elder by its terms charges that portion of his estate which he derived from his son John the younger, with the debts of his son ; — and if the will be executed so as to pass or charge real estate, this will must have that effect. But the will is not attested by any witnesses, and in the sentence of probat there appears no proof that it was wholly written in the testator s hand. It was, however, ordered to be recorded in general terms, and not merely as a will of personalty. In this state of things, it would seem that we must, according to the decisions of this court, cited at the bar, take it to be a good will to charge the realty. To this course of decisions I feel myself bound to defer, where, as in this case, it is possible, evidence may have been given of the whole will being in the testator’s handwriting. This, though it be not true, we may be bound to presume to be true. If, however, a case were to occur where upon its face the will could *not pass real estate, as if it were not signed at all, 1 should much incline to consider the order to record it, however general, as properly to be interpreted in the more restricted sense of declaring it a good will of personalty only.

The other judges concurred, that the decree should be reversed with costs, and the cause remanded, in order that the accounts should be sent back to the commissioner, with instructions to disregard the audited account of the Hanover commissioners, and to report the amount and character of the appellee’s claims, whether in his own rights or as substituted in place of the creditors whose claims he had discharged, and to be further proceeded in to a final decree.  