
    Robert W. Harper vs. R. T. Archer.
    The final account of an executor or administrator allowed and confirmed by the probate court, cannot be set aside after the term of the court, at which it is confirmed; but a different rule prevails as to annual or partial settlements ; they are only prima, facie evidence in favor of the executor or administrator and may be surcharged or falsified at any time, before the final settlement upon a proper proceeding; but the burthen of impeaching them rests upon those who allege their error.
    Therefore, where before a final settlement of an administrator, one of the parties in interest, at a term subsequent to a partial settlement, filed a petition against the administrator, alleging fraud and error in such partial settlement, it was held erroneous for the probate court to sustain a demurrer to such petition.
    In error from the probate court of Claiborne county; Hon. W. M. Randolph, judge!
    Robert W. Harper and Catharine, his wife, late widow of "Stephen C. Archer, deceased, filed their petition in the probate court, against Richard T. Archer and William Eggleston, administrators of said Stephen C. Archer, charging them with having made false charges in their annual settlements with the probate court of their intestate’s estate. It is not deemed requisite, in this stage of the case, to note the charges of the petition more fully. It was filed in June, 1842; and the errors complained of were contained in settlements made at previous terms.
    To this petition Archer pleaded in bar, that at the March term, 1841, of the court, he settled as administrator of Stephen C. Archer, his partial account, which was by decree of the court received, allowed, and ordered to be recorded; and that all the matters and things respecting which relief and discovery were sought by the petition, were embraced in said partial account, and were fully adjudicated upon.
    
      Harper and wife demurred to this plea, and assigned for cause of demurrer,
    1. That their petition charges fraudulent conduct and fraud upon Archer, and the plea is not accompanied by any answer denying the fraud; and sets up matters apparent in the record.
    2. That the petition sets up matters which occurred after the settlement, which is pleaded, and to which the matter pleaded does not apply.
    3. That the matter pleaded is not a bar to ■ the prayer of the bill.
    The probate court overruled the demurrer to the plea and dismissed the petition.
    Harper’s wife having died, he as her administrator prosecuted thiswrit of error.
    
      J. A. Maxwell, for plaintiff in error.
    
      John B. Coleman, for defendant in error.
    As being first in dignity, though not first in order, we will notice at the commencement, the third cause of demurrer, to wit, “ that the matter pleaded is not a bar to the bill.”
    Is then, the judgment and decree of the probate court at the March term, 1841, a bar to the bill as it now stands 7 A judgment or decree of a court which has jurisdiction of the parties and the subject-matter, is while unreversed, conclusive upon the parties, as to the subject-matter adjudicated upon. Story’s Eq. PI. 608-612; 2 Madd. Ch. R. 462 ; 1 John. Ch. R.286, 543 ; 3 Mon. 362.
    “ A final decree, or decretal order passed by the court of-chancery, or the county court, as a court of equity, from which an appeal might have been taken within a limited period, after the expiration of such period, in the further progress of the cause in which it was pronounced, and in the absence of any other ground of error than what the prior proceedings themselves disclosed, will be considered as conclusive upon the rights of the parties, as well in the court of'original jurisdiction, as in the appellate court. Strike v. McDonald, 2 Har. & Gill, 191.
    
      2. Is this judgment, decree, or decretal order of the probate court receiving, allowing and admitting to record Archer’s account, conclusive upon Harper and wife, so long as it is unrecorded 1 It cannot be objected, that they were not parties to this settlement. All persons interested in the estate of Stephen C. Archer, were, by the operation of our statute, parties. The publication which the administrator is required to make before the presentation of an account for settlement, is substituted by our statute for the personal service of notice or issue, and where publication has been made, all persons interested in the estate are at once, and without further action, parties.
    3. Neither, we conceive, can it be successfully objected that the settlement made by Archer, was only a settlement of a partial account, and on that ground not conclusive. It was not a partial settlement of the matters embraced in the settlement. As to them it was final in every sense of the word. It is only termed a partial account or settlement, in reference to the whole administration. It contemplates a continuance of the administration, and future settlements as to future acts of administration, but as to past acts of administration, it is to all intents and purposes, final. A partial account once allowed, is never again incorporated into any subsequent account. When accounts are annually settled by an administrator, each one commences at the date at which the preceding one stops. An appeal will lie to the high court of errors and appeals from such an order. Green, Administrator, v. Tunstaü, et al. 5 How. 649. And in Carmichael v. Browder, 3 S. & M. 258, parties are especially admonished (for the very reasons contended for above), if they are interested in estates, to watch their progress through the probate court with diligence.
    4. We apprehend, then, that the decretal order of March, 1841, can only be impeached in this court by bill of review. A bill of review lies in two cases; 1. For error in law, apparent on the face of the decree; 2. For new matter that has arisen after the decree, or matter that has come to light since the decree, but which cannot possibly have been used at the time. Story’s Eq. PI. 322; 2 Johns. Ch. R. 488, 491; 3 Madd. Ch. 537; 3 How. R. 380; 5 How. 736 ; 3 Johns. Ch. R. 126 ; 3 Eq. Digest, 46-54. This is not a bill of review.
   Mr. Justice Clayton

delivered the opinion of the court.

This court has decided, on several occasions, that the final account of an executor or administrator, allowed and confirmed by the probate court, cannot be set aside after the. term of the court, at which it was confirmed, unless for fraud. 7 How. 188; 3 S. & M. 329. This case presents the question, whether the same rule is applicable to any other than a final settlement.

The usual course of decision is, that annual, or partial settlements, are only prima, facie evidence in favor of the executor or administrator, and that they may be surcharged or falsified at any time before the final settlement, upon a proper proceeding. Chilton’s Probate Court Law and Practice, 332; 6 Halsted 44; 13 Peters, 381; 2 Lomax Exrs. 311; Turney v. Williams, 7 Yerg. 210; Burwell v. Anderson, 3 Leigh, 348.

We think this is the true rule. Such partial settlements, are of great utility. They show the situation of the estate to all concerned; they relieve the executor or administrator from the danger arising from loss of vouchers, and place the burthen of proof upon those seeking to impeach them. The balance is carried into the next account, and so on from time to time, until the whole is adjusted in the final settlement. Chilton, et supra. The act of 1846, is in this respect, but a re-enactment of the previous law.

The petition filed in this case alleged fraud and error in the partial settlement of the administrator, and the court, upon demurrer dismissed the petition. This was erroneous.

The judgment will be reversed and cause remanded for further proceedings.  