Hayes v. O'Connel. GOLDTHWAITE, J.-As this case is presented, we think it quite clear, the complainant is entitled to the relief she seeks. If the intention of the defendant's attorney was, to obtain an advantage over her, which the facts would not have warranted, if the christian name of the person to whom the notes were given, had been inserted in her answer, when prepared by the attorney, then a case of fraud would be made out, of which the defendant would not be permitted to take the benefit, and for which he would be held responsible. [Ardglass v. Pitt, 1 Vern. 239.] But the facts disclosed by the evidence warrant us in giving a different construction to the conduct of the attorney, and lead to the impression, that however erroneous his opinion was, as to the right of his client to condemn the debt due from Hayes' estate, he meditated no wrong to the administratrix. It appears that O'Connel was impressed with the belief, that the goods purchased by Hayes belonged to Patrick Cavenaugh, and that the notes were made to John Cavenaugh for the purpose of covering the debt. Under these circumstances, the attorney most probably considered that the respective titles of the Cavenaughs could be investigated in the proceedings to be had under the garnishment issued in the attachment suit against Patrick. The debt never was due to this individual, and if Hayes was innocent of any partici- . pation in the attempt to cover his property it could not be condemned in his hands, in a suit to which John Cavenaugh was a stranger. The legal title of the debt was vested in him, and whatever conclusion might be arrived at in the suit to which Patrick was a party, the other would not be concluded by it. The assurance given by the attorney to the complainant, that she should not be injured by the answer, but should be protected against the notes upon which Johnson was then sued, was possibly made in good faith, and the defendant is bound by it. In effect, it was a stipulation that she should not pay the money if John Cavenaugh was entitled to it, and that he or his client would protect her from these notes. If the matter had been contested, it is clear that O'Connel could not have condemned the money, without proceedings to which the other Cavenaugh should have Brazeale's Adm'r v. Brazeales Distributees. been a party; and not being able to make good the agreement upon which the judgment against Mrs. Hayes was obtained, that must be perpetually enjoined. Decree reversed and so rendered. BRAZEALE'S ADM'R v. BRAZEALE'S DISTRIBUTEES. 1. When upon the settlement of an estate, the administrator makes an agreement in relation to the settlement, with a portion of the distributees acting for the whole, it is binding on the administrator, if all the distributees afterwards affirm it. 2. Partial settlements previously made according to law, are upon the final settlement to be considered as prima facie correct, but may be surcharged, and falsified, by the distributees. Ex parte allowances, made to the administrator, without any cause assigned therefor, are nullities. 3. An administrator is chargeable with claims lost by his neglect. He is prima facie liable for the debts due the intestate, which he did not return desperate, and for the gross amount of the sales made by him; and for interest from the maturity of the debts, unless by his affidavit he shows he did not use the money. 4. When a decree of distribution is not made at the final settlement, no such decree can afterwards be made, without notice to him, setting forth when the decree will be made, and who claims the right to distribution. Writ of Error to the Orphans' Court of Walker. THE plaintiffs in error, administrators of the estate of Geo. Brazeale, applied to the Orphans' Court for a settlement of their accounts, and the 4th June, 1839, was set for that purpose. After many continuances, and citations to bring in the administrators, they at length appeared, and filed their accounts and vouchers, which were examined, audited, stated and reported for allowance on the 1st Monday of Februa ry, 1845. The settlement was postponed, first to the third Brazeale's Adm'r v. Brazeale's Distributees. Monday in March, by consent of the attorneys, and again to the second day of April, and finally to the first Monday in June. At that time the administrators appeared, and "Thomas M. Peters, attorney at law, in part, for the distributees of said estate, and submitted to the court an agreement in writing, entered into between William S. Earnest, attorney at law for said administrators, and said Peters, attorney for the legatees, in part of said George Brazeale, sen. deceased, as follows, Morgan Brazeale and Edward F. Brazeale, administrators, &c., in account, &c. It is agreed, that all settlements, and allowances heretofore made in this Court, or concerning said estate, shall be opened, and that the said Judge of said Court, shall proceed to make a final settlement as if former settlements had never been made-that is, the present settlement shall be de novo; and said administrators shall be charged with any thing for which they are jointly chargeable, and account for the same, and be allowed all credits in law or equity they are justly entitled to, and it is agreed further, that this be made a part of the record. April 4, 1845. The record then states, "that notice according to law had been given of the settlement, and that the court proceeded to the settlement, and objections being made to the account of the administrators, it appeared to the court they were well taken-that many of the accounts of the administrators were unsupported by proper and legal vouchers, and it further appeared to the court, that the administrators had neglected to charge themselves with all the goods rights and credits which had come to their hands, and possession, as such administrators; it is therefore ordered that the said administrators be charged, and credited, in said final settlement of said estate, as set forth in their account as follows:" Here follows an account stated by the court, by which it is ascertained that the amount in the hands of the administrators, subject to distribution, is $3,850 38. Then follows an order that the account so settled is allowed, and ordered to be filed and recorded. At the succeeding August term of the court, the court made an order of distribution and decreed, that the administrators pay to Morgan Brazeale, Edward Long, in right of his wife Brazeale's Adm'r v. Brazeale's Distributees. Susan, and Philip Ussery, in right of his wife, each $962 64, and to John, Sarah, Edmund, and Malinda Brazeale, grand children of the deceased, each $240 60. From this decree this writ is prosecuted by the administrators, who, by their assignment of errors raise the following questions: 1. The insufficiency of the decree upon the final settle ment. 2. The settlement was made de novo, and a portion of the distributees were not present. 3. The agreement to make a settlement de novo was void, because all the parties did not consent. 4. The court, at the final settlement, altered and disallowed settlements previously made, and charged the administrator with assets not reported in the inventory. 5. The amount ascertained by the final settlement was too large. 6. In not making a sufficient allowance to the administrators. 7. The court refused to allow a sum of money, which had been adjudged to one of them by the verdict of a jury, at a previous term. 8. The administrator was charged, with a large amount of uncollected debts, as cash. 9. The court made distribution between four heirs, when the record does not show but three. R. H. SMITH, for plaintiff in error. The decree of distribution is erroneous, in not having been rendered at the same term of the court, when the final settlement was made. It does not appear to have been rendered nunc pro tunc. The adminis trator being liable to execution, ought to have been present at the making of the decree. [4 Porter, 332, 124; 2 Ala, Rep. 192; 4 Ib. 123; 7 Id. 9, 613; 5 S. & P. 397.] The record shows, that Peters appeared for the distributees in part. It is not shown which of the distributees was not represented by counsel, or that any of them were before the court. It does not appear that Earnest, the attorney of the administrators was present, and the agreement between the attornies to go into the settlement de novo, was made out Brazeale's Adm'r v. Brazeale's Distributees. of court, some time previously. The agreement should not have been received by the court, because the court could not dispense with the "stating," and "auditing," of the account. The consent of Peters for part, could not bind all, and was therefore of no validity. It appears from the record, that in 1841, $610, by the verdict of a jury, and the judgment of the court, was allowed to one of the administrators; this claim was disregarded by the court on the settlement. [2 Ala. Rep. 287.] The court also refused to allow several other allowances made to the administrators at different times. These allowances reduced the assets at that date, and should at least have stopped the interest. The court had no power on the final settlement over assets of the estate not stated, or reported, as the statute directs. The interest is computed from the origin of each debt, and the sales were on twelve or eighteen months credit. T. M. PETERS, contra. The ascertainment of the sum due on the final settlement, is not only sufficient, but is strictly formal, as it ascertains a specific balance to be distributed. [Clay's Dig. 229, § 41, 42; 7 Porter, 270; 4 Ala. Rep. 121; 5. Id. 473.] The proper parties were before the court, the administratrators on one side, and the distributees on the other; who the distributees were, is shown upon the record. If any of the parties were objected to, it should have been shown by bill of exceptions. [4 Ala. Rep. 158; 6 Id. 607.] Besides, the parties on both sides appeared by their attornies, as the record shows. The settlement was de novo, not by order of the court, but by consent, and agreement of the administrators themselves, and they cannot complain. [Rule 14, Clay's Dig. 610; 7 Ala. Rep. 622.] Besides, it should appear from the record, (but does not,) that the party was prejudiced by it. [1 Ala. Rep. 217, 506.] The administrators may have agreed to it, to avoid an expensive and tedious Chancery litigation. It was fully in the power of the court to charge the administrators on the final settlement, with assets not accounted for by them, nor is it easy to conceive how they could be |