
    Mountjoy v. Lowry.
    Spring- Vacation,
    1809.
    Executors and Administrators — Ex Parte Settlements— Evidence of Correctness. — How far Uie. settlement of an executor’s or administrator’s account, made under an ex parte order of Court, is to be regarded as evidence of the truth of the statements therein contained.
    *** See the case of Atwell’s Adm’r v. Milton, In the Court of Appeals, ante.
    Commissioner Parke, at Fredericksburg, made a report in this case, by which he submitted this question, whether an executor’s account, settled ex parte and without notice, by order of a County Court, should be considered by him as a final settlement or not.
    
      
      Executors and Administrators — Ex Parte Settlements —Evidence of Correctness. — In a note to Backhouse v. Jett. 2 Fed. Cas. 323, it is said: “It has always been the practice in Virginia, for the county courts, at the instance of an executor, or administrator, or any party interested in his accounts, to make an ex parte order for the settlement of the administration account before commissioners, without any summons to the parties concerned. Taylor, Ch., in Mountjoy n. Lowry, 4 lien. <& M. 428. And this account, when so settled, without notice, is taken as prima facie evidence of the correctness of the charges and credits, therein contained'; but any. party interested, may, by bill in equity, surcharge and falsify it, if capable of adducing satisfactory evidence for that purpose. Tucker. J., in Anderson v. Fox, 2 Hen. & M. 260; Atwell v. Milton, 4 Hen. & M. 263: wall v. Gressom, 4 Munf. 110.”
      The principal case is also cited in foot-note to Anderson v. Fox, 2 Hen. & M. 245. See monographic note on "Executors and Administrators” appended to Rosser v. Depriest, 5 Gratt, 6.
    
   By the Chancellor.

I have given this subject due consideration, and whatever may have been the practice of the Ecclesiastical Courts in England, I am perfectly satisfied that, from the first settlement of this country, the County Courts have always, at the instance of an executor *or administrator, or any party interested in his account, made an ex parte order for the settlement thereof before Commissioners, without any summons to the parties concerned; and such settlements, when made, have always been receivéd as prima facie evidence of the contents thereof. This has become the settled course of the country from long and uninterrupted usage, and probably from this consideration, that the executor or administrator must prove the items in his account, which the Commissioners are then bound to allow, unless a party being present, and interested in the settlement, can falsify any of them; but it is well known, by those who know any thing of the concerns in common life, that such settlements always take place in the neighbourhood of the parties, and that they generally do attend, and more especially if any dispute among them produced the order for the settlement; but whether they do or not is not material, as the decision of the Commissioners is not obligatory either way; and although the settlement, when made, is usually put of record as it should be, yet it may afterwards be questioned by any one interested therein, who may exhibit his bill in equity tor that purpose, and who may be allowed to surcharge and falsify the same; and in no instance (as far as I am informed) have such settlements been considered as more valid, because notice thereof had been given to the parties concerned, unless where a suit for that purpose was instituted ; and then the subject of controversy, as well as the parties, being known, notice of the settlement should be given, in order to put an end to the contest.

I understand from the Chief Justice, that in the Federal Court of this place, such settlements are always admitted as prima facie evidence; and such seems to be the opinion of Judge Tucker, in the case of Anderson and Starke v. Fox and others, 2 Hen. and Munf. 260, although the question was not decided bj’ the Court, in that case, as necessary to the merits of the cause: nay, *a practice so long pursued without any change in it, affords to my mind the best evidence of its utility; for, monstrous would be that rule, which should require executors or administrators to preserve, at their own peril, the loose vouchers of their transactions, which derive no additional validity from being thrown into the form of an account. They were subject at first to be falsified, and so is the account formed out of them likewise subject to be surcharged and falsified. Upon this view of the subject, the Court gave this direction to the Commissioner: that the settled accounts of executors or administrators, by order of the County Courts, should be taken as prima facie evidence of the several debts and credits therein, subject to be surcharged and falsified by any person who may be affected thereby.  