
    Silas W. McLoon and others, appellants from decree of Judge of Probate, vs. Henry Spaulding and another, Administrators.
    
      Probate law and practice. Administrator's compensation. Evidence. Exceptions. Onus probandi.
    
    The amount of compensation received by a special administrator upon an estate cannot affect the amount to 'which the administrators upon the same estate, subsequently appointed, are entitled; hence, the inventory returned and the account rendered by such special administrator are not admissible, upon the hearing of an appeal from a decree of the judge of probate allowing a certain sum by way of compensation to the administrators.
    Upon an appeal from such allowance in a second account of administration, the compensation allowed in their first account is not properly subject to revision; and exceptions to a ruling that such first account, having been passed upon by the judge of probate and not appealed from, could not properly be reviewed, with a view to fixing the compensation of the administrar tors in the second account, cannot be sustained when neither of the accounts is brought up with the exceptions, and there is nothing tending to show that the excepting party was injured thereby.
    If the word “reviewed” is to he understood in a technical sense the ruling is correct; hut such first account may and should he referred to, and it is competent evidence between the parties upon such hearing so far as the facts exhibited therein have a hearing upon the questions raised by the reasons of appeal.
    The burden of proof is upon the administrators, upon such an appeal, to establish their claim to the amount allowed therein as compensation by the judge of probate, and they have the right to open and close.
    On exceptions.
    Appeal from a decree of tlie judge of probate of Knox County, allowing $1,575 as commissions to tbe administrators upon tbeir second account of tbe administration of tbe estate of late William McLoon. Tbe appellants alleged tbis allowance to be excessive, inasmuch as $6,000 bad been allowed tbe administrators as commissions upon tbe settlement of tbeir first account.
    There bad been a special administration upon tbe estate, pending tbe determination of a controversy as to tbe administration. Tbe inventory filed by tbe special administrator and bis account, closed before tbe appointment of the appellees, was offered in evidence on the bearing of tbis appeal, and was excluded by the pre•siding justice, who also ruled that tbe compensation allowed in tbe first account was not properly subject to revision upon tbis appeal; and that “tbe first account having been passed upon by tbe judge of probate, and not appealed from could not properly be reviewed, with a view to fixing the compensation of the administrators in tbe second account, from tbe allowance of which tbis appeal was taken.”
    Both parties claimed tbe right to open and close. Tbe judge accorded tbis privilege to tbe administrators; and after bearing tbe cause and arguments of counsel, affirmed tbe original decree and tbe appellants excepted.
    
      Peter Thacher and J. H. PE. PEewett, for tbe appellants.
    
      Gould c& Moore, for tbe appellees.
   Barrows, J.

The single issue presented to the judge at nisi jprius by the reasons of appeal filed in the probate court was this: Was the allowance of $1,575 as commissions to the administrators of the estate of Wm. McLoon, in addition to the sum of $6,000 thus allowed in a former account, unreasonable and excessive ?

With this question neither the inventory nor the account rendered by the special administrator, whose connection with the estate subsisted before these administrators received their appointment, had anything to do. They were properly excluded.

That former accounts from the allowance of which no appeal was taken, and the matters passed upon in them are not subject to revision and readjustment upon an appeal from the allowance of a later account in which the same question was not before the judge of probate for consideration, was settled in Sturtevant v. Tallman, 27 Maine, 78. In that case and in Coburn v. Loomis, 49 Maine, 406, and Arnold v. Mower, id., 561, a mode is pointed out by which the attention of the probate court may be called to the correction of alleged errors in previous accounts, and a refusal to correct upon good cause shown may become a fresh subject of appeal. But so far as appears nothing of that sort was done at the hearing before the probate court in this case. The second ruling complained of was therefore correct. The third ruling to which exception is taken, was as we understand it, in purport and effect the same as the second. The presiding judge could not have intended that the appellants should understand that the previous account could.not be referred to for the purpose of ascertaining, for example, how near the statute limit of commissions had been reached — or the character of the work already done, and remaining to be done, by the administrators — or that any fact appearing in it having a bearing upon the question of the amount now to be allowed should not be considered.

He only meant that the question of the propriety of the allowance made in the first account was not here and now an open question. But even if the ruling would bear the interpretation which the counsel for the appellants claims, there is nothing in the case before us to show that the error and exclusion were prejudicial to the appellants. It is their business to show not merely that the ruling was technically erroneous, but that the error was injurious to their cause. Neither of the accounts, nor the inventory, nor any report of the testimony is before us. For aught that appears an examination of the first account would have demonstrated not only the propriety of the allowance therein made to the administrators, but the justice of their claim to the further compensation now given.

A rehearing for such a result would be nugatory. Lord v. Kennebunkport, 61 Maine, 462.

Whether the appellant or the appellee shall have the opening and close depends upon the character of the issue presented.

Upon the preliminary question, whether the appellants have such an interest as to entitle them to an appeal, the affirmative is upon them and they «have the right to open and close. Deering v. Adams, 34 Maine, 41.

But where the issue is upon the sanity of a testator, it belongs to the executor to open and close, though he is the appellee. Ware v. Ware, 8 Maine, 42.

In the present case the burden of proof being upon the accountants to establish the correctness of their claim, they have the right to open and close. ' Exceptions overruled.

Appleton, C. J., Dickerson, Daneorth and Yirgin, LL, concurred.  