#### Wyllie and Wife v. Venable’s Executor.

Argued Feb. 1st, 1815.

1. Executors — Accounts—Bill to Surcharge — Reference to Commissioners — What Necessary.* — The account of an executor having been settled by commissioners appointed by the court before which the will was proved, is not of course to be again referred to a commissioner, on a bill to surcharge and falsify: but some evidence should be exhibited to that effect, or something improper in the account should be disclosed in the answer; otherwise such order of account ought not to be made, but the bill should be dismissed.

2. Same — Same—Same—Want of Proper Parties — When Objection Must Be Made. — On a bill to surcharge and falsify an executor’s account, the legatees as well as the executor being defendants ; if the plaintiff direct the cause to be set for hearing, after the executor has answered, but before the process against the legatees has been served ; and the cause be heard on the merits ; he cannot object to the want of proper parties, or that the decision was premature.

This was a suit in the Superior Court of Chancery for the Richmond district, brought by Wyllie and wife against Nathaniel Venable, executor of Abraham Venable, of Buckingham county, deceased, and others, legatees of said decedent.

The object of the bill was to surcharge and falsify an account of the administration of the said executor, which had been examined by commissioners appointed by the District Court of Prince Edward, (in which the will was proved, and *the executor qualified,) by them returned to that court as correctly stated, (shewing a balance due the executor of 591.17s. *Syíá.)*and ordered to be recorded. Sundry objections to the account were made in the bill, and the plaintiffs prayed that it be re-examined before one of the commissioners of the Court of Chancery : but no evidence was exhibited to prove that any of those objections were well *173founded. The cause was set for hearing, by the plaintiff’s direction, as to the defendant Nathaniel Venable, who, by his answer, had denied the charges against him. And new process was awarded against the other defendants, none of whom had answered.

Chancellor Taylor dismissed the bill, with costs. To this decree the plaintiffs offered a bill of review ; insisting that their original bill ought to have been dismissed on a hearing, but they were of right entitled to an account, before a commissioner, of the executor’s transactions. The chancellor thereupon pronounced the following opinion.

“The court being of opinion that, notwithstanding the general rule, that in a bill for an account against trustees of any description, where the trust is made to appear, a reference to a commissioner is a matter of course; yet, where there has been a settlement of the trust, although such settlement, as in the case soug'ht to be reviewed, is only prima facie evidence thereof, it should not be referred to a commissioner upon a bill, such as in that case brought, to surcharge and falsify, without some proof to that effect; for this reason, the bill was dismissed ; and, for the same reason, the present bill to review that decree of dismission is denied.”

The plaintiffs appealed to this court.

Wickham for the appellants.

It is matter of course to direct an account, wherever a trustee has received a subject. An ex parte settlement, before commissioners in the country, is no bar to a re-examination before a commissioner of the Court of Chancery. Such ex parte settlement is only prima facie evidence, and may be surcharged and falsified before that commissioner, (a)

2. The chancellor decreed prematurely ; all the proper ^parties having not been brought before the court, (b) This could not be considered an error of ours, for we made all the necessary parties.

No counsel for the appellee.

February 6th, 1815,

*

Executors — Accounts—Bill to Surcharge — Reference to Commissioners — What Necessary. — An *ex parte*settlement made by an administrator of bis.account as such with the court by which he was appointed, though not final or conclusive, is yet *prima facie*evidence of its correctness till th e contrary is shown. It forms no barrier to a bill in equity specifying errors, whether of law or fact, and impugning the settlement upon that. ground. The parties interested may surcharge such a settled account by specifying items for which credit should be given, but which are omitted, or may falsify by pointing out charges improperly made. It is impossible for the administrator, under general charges notspecifying errors, to defend himself properly, if the plaintiff may come at the hearing with proof of those errors of which the defendant has before heard nothing. And not only the duty of specifying errors, but also the *onus proban&i,*devolves on the party complaining. The court will take it as a stated account and establish it, 'unless errors be alleged and proven. And if no evidence be exhibited to surcharge or falsify the account, and nothing improper in it is disclosed by the answer, the court will not refer the case, but the bill will be dismissed. Peale v. Hickle, 9 Gratt. 445, citing principal case: Nimmo v. Com., 4 Hen. *&*M. 57; Atwell v. Milton, 4 Hen. & M. 253; Newton v. Poole, 12 Leigh 112. To the same effect, the principal case is cited in Radford v. Fowlkes, 85 Va. 846, 8 S. E. Rep. 817; Leavell v. Smith, 99 Va. 378, 38 S. E. Rep. 202; Seabright v. Seabright, 28 W. Va. 435. And in Seabright v. Seabright, 28 W. Va. 438, it is said; “If in the bill the plaintiff has specified errors but introduces no evidence to sustain the specified errors, or the evidence, which is introduced for that purpose, fails to establish such errors, the court ought to dismiss the bill, unless something improper in the *ex parte*account is disclosed in the answer or is apparent on the face of the account; in which case the court should correct such apparent error or admitted error or refer the cause to a commissioner that it may be corrected. *Wyllie v. Venable,*4 *Munf.*369.”

See further, monographic *note*on “Executors and Administrators” appended to Rosser v. DePriest, 5 Gratt. 6.

(a)

 Anderson and Stark v. Fox and others, 1 H. and M. 259 ; Atwell’s administrator v. Milton, 4 H. and M. 253.

(b)

 Richardson’s executors v. Hunt, 2 Munf. 148; Sheppard’s executor v. Starke and wife, 3 Munf. 29.

JUDGE BROOKE

pronounced the court’s opinion.

The object of the bill in this case is to surcharge and falsify the account of an executor, settled by commissioners appointed by the court, before which the will had been proved. As that account was prima facie evidence of its correctness; as the answer disclosed nothing improper in it; and as the complainant exhibited no evidence whatever to that effect, but had the cause set down himself for hearing, which was heard on the merits ; the court is of opinion that it was not incumbent on the chancellor to have referred the account; and that he acted very correctly in disallowing the bill of review.

The decree is therefore affirmed.