
    CAMERON, Judge &c. use of Helm, vs. R. Y. GIBSON.
    Whci'o no cvidonco tvae offered to show that tho final account of an administrator, settled by tire orphans court, had passed in review before tho county and probate court, it was error to decider that such an account was final and conclusivo as between the parties.
    Thero is no legal presumption that such an account, from tho fact of its being settled by the orphans court, has boon reported to, and allowed by tho county and probato court, but such fact must bo proved.
    BRIEF OF R. W. GAINES, ESQR.
    The court below erred in its charge to the jury in this case, and in all the opinions expressed in said charge, and the judgment should have been for the plaintiff, and not for the defendant.
    The settlement of an administrator’s account in the orphans court, whatever may be its effect in relation to distributees, is only prima facie as to creditors;
    
    See acts 1824, page 107, section 3.
    Norris’s Peake, 561; 4 H. & M. 253, 428; 2 do. 260; 2 Ser. & R. 518; 4 do. 248; 2 Vesey, 566; 1 Harris & J. 232. 1 Dallas, 164; 7 Cranch, 282.
    The bill of exceptions shows that the instructions asked for in the court below, were pertinent to the case, and it would have been worse than useless to encumber the record with other evidence than what related particularly to the subject matter of the instruction. It must be evident that the whole case would turn upon the decision of the court, as to the conclusiveness of the account.
    2 Peters, 15; 1 Cow., 639; 8 John., 507-8, and authorities cited; 1 Wend., 421; 4 Bibb, 100.
    The settlement could, in no event, be final, until acted upon, and passed in the county and probate court; see acts 1824, p.-107, sec. 3.
    
      The orphans’ court had no jurisdiction to do what it did, in allowing the account,- and the act of that court, in allowing commissions, is a nullity, for want of jurisdiction; acts of1824, page 107, sec. 3; 15 Johns., 121; 5 do., 37,41.
    The settlement shows the estate insolvent, and the very act of -paying the whole of the assets, is a devastavit to the amount of the whole of the plaintiff’s rateable proportion. The administrator was bound, at his peril, to take notice of the judgment of the plaintiff; 4 H. & M., 57.
    The court erred in charging the jury as to the legal presumption that the account had been reported to the county and probate court, especially after overruling the plaintiff in an attempt to rebut the presumption; but the fact is, there is no such presumption as applicable to this case.
    BRIEF OF R. W. WEBBER & SAM’l B. HARSH, ESQRS.
    The defendant relies upon the following grounds, to wit:
    First — The orphans’ court of the county of Franklin possessed full and complete jurisdiction to examine,decide upon,and allow the account of final settlement of D. Farnham, administrator, and having allowed it upon a regular settlement, it is conclusive upon all parties, (including creditors,) until reversed or set aside. (See Revised Code, page 27, section .1, 52, 87.)
    Second — That the decree of the orphans’ court, if erroneous, could have been reversed by appeal, at the instance of the plaintiff, who was a party to the decree, having notice, as required by law; revised code, page 30 sec. 12,52, 87.
    Third — That it does not appear, from the record, that'the claims in favor of Helm, the plaintiff, were presented to the administrator, within eighteen months from the granting of letters of administration, (rev. code, page 63, sec. 115,116,) and notice to present claims; and, as such, was entitled to be paid by the administrator; or that he had notice before the assets were exhausted, and he is not liable in his individual capacity, for a mistake in pleading, or mispleading;
    Letters having been granted in September 1824, and the judgments of Helm, rendered in April, 1827, (see plaintiff’s declaration,) and if the claims were not presented in 18 months, it was not the duty of the administrator to represent the estate insolvent, and if it was his duty to represent the estate insolvent, it ought to be assigned for breach that he failed to do so, without which he cannot be charged with such neglect; page 58, sec. 103, rev. code. Ib. page 44-57.
    Fourth — That the judge of probate, reporting his proceedings to the county and probate court, is a duty required of him to perform, ex officio, and it is not the duty of the. administrator whose account has been allowed, to cause or require him to make such report; but if the administrator can require it, so can a creditor, if he is dissatisfied with the decree of the orphans’court; and this court will presume that such report was made and confirmed, the testimony offered by the plaintiff to disprove the fact of such a report having been made, being parol, and not record, testimony, and therefore incompetent, and properly rejected by the circuit court; see act of 1824.
    Fifth — That the verdict and judgment is correct, it not appearing from the record that the plaintiff produced before the court or jury, any evidence whatever, in support of his action.
   OPINION OF THE COURT — by the

Hon. J. R. NICHOLSON.

This is an appeal from the cirouit court of Franklin county, second district. It is an action of debt, brought on the bond of the defendant as security of Daniel Farnham, administrator of Stephen Owens, deceased.— The breaches are set out in the declaration, and the one on which the plaintiff relies for a recovery, is the non payment, by the administrator Daniel Farnham, of two judgments; one for ,f244.41, and the other for $126, obtained in the circuit court of Franklin county, at the April term, 1827, in favor of John N. Helm, against said’Farhnam, as administrator as aforesaid.

Two questions are raised by the bill of exceptions for the consideration of the court:

1. That the defendant offered, in evidence, an administration account of Daniel Farnham, administrator of Stephen Owens deceased, and no evidence was offered, to prove that said account ever was acted on by the county and probate court; but the plaintiff offered to prove, negatively, by the register of the orphans’ court, that said account never had been acted on by the said county and probate court; but the. court refused to ad-jnit the proof.

The 2d point raised by the bill of exceptions, is, that the plaintiff, by Ills counsel, moved the court to instruct the jury that said account, unsupported by any evidence, except that which appeared upon its face, and the endors ement thereon, was not final and conclusive; but the court overruled the motion, and instructed the jury, that said account, as between the parties to this suit, was final and conclusive; that the duty of the administrator ceased, the moment his account was allowed by the judge of the orphans’ court; that the failure of the judge of probate to report his proceedings to the county court, could not prejudice the rights of the administrator, and that the legal presumption was, that the account had been so reported and acted on by the county court.

It is not necessary to decide the question whether the final account of an administrator, settled in the orphans’court, is final and conclusive, or not; because, in this case, the account is an imperfect one. It purports, on its face, to be the final settlement of the administrator and commissions to the amount of 159 dollars are allowed. By the act of 1824, page 107 the final account of an administrator must pass in review, before the county and probate court; and no commissions can be allowed the administrator, except by that court.

Again: This account shows disbursements, beyond the amount of the estate, and the plaintiff’s claims are not paid, or noticed, although he, (the. administrator,) had legal evidence of their existence againsthim. Neither is the estate declared insolvent; all of which, taken together, are'conclusive evidence of a devastavit; 7 Cranch, 281; 4 Mumf., 252 ; 2 Hen. Mun., 251; 3 Harris & Johns., 251; 4 H. & M., 57; 2 Ser. & R. 518 ; 3 Bibb, 249; 5 Monroe, 61.

I am, therefore, clearly of opinion that the court below erred, in instructing the jury that the account was final and conclusive between the parties.

It also erred in instructing the jury that the presumption of law was, that the account had been acted on by the county and probate court, when the account itself rebutted that presumption: the judgment below must therefore tbe reversed, the cause remanded, and a (venire de novo •awarded.

The court are unanimous.  