#### George W. McAfee *v.*Thomas Phillips.

1. An account rendered by an executor or administrator, and settled by the-Probate Court, is not final, so as to bar further inquiry in regard to the assets of the estate in the hands of the executor or administrator, not accounted for or passed on.

2. Where such an account has been rendered and settled, the Probate Court. may, at any time, within the time limited by the statute, compel the executor or administrator to render a further account of any assets of the-estate in his hands, not settled in a former account.

8. The settlement of an account of an executor or administrator, by the Probate Court, is conclusive, as against parties with actual notice of the settlement, of all matters set out and specified therein, and as to such matters, the party rendering the account can not be required to account a second time, unless the same is impeached for fraud or manifest error.

Error to tbe Court of Common Pleas of Brown county. Reserved in tbe District Court.

Tbe original case was a proceeding, by citation, in tbe Probate Court of Brown county, by tbe plaintiff, as one of tbe beirs at law and distributees of tbe estate of Tbomas T. Phillips, deceased, against tbe defendant, as administrator of Tbomas T. Phillips’ estate, to compel him to account for $414, assets of tbe estate, which came into bis bands as such administrator, and which were not included in tbe inventory, nor charged to him in tbe account filed in the Probate Court, upon tbe settlement of which a distribution of tbe assets, appearing in bis bands, was ordered.

*375On the hearing, the Probate Court found that the defendant, as such administrator, had received assets of the estate to the amount of $414, for which he had not accounted in the settlement of the estate, and that the same, less $25.84, his commission thereon as administrator, was then in his hands for distribution, and ordered him to distribute the same according to law, to the persons entitled thereto, and rendered judgment against him, personally, for the costs of the proceeding. The defendant appealed to the Court of Common Pleas, and on the hearing, that court found that the defendant ought not to have been charged with the $414 additional assets, nor required to distribute the same, and thereupon set aside and reversed the proceedings and judgment of the Probate Court, discharged the defendant, and rendered judgment against the plaintiff for costs, to which the plaintiff excepted. The plaintiff filed a motion for a new trial, which was overruled by the court, and excepted to by the plaintiff, whose bill of exceptions in that behalf, containing the agreed statement of facts upon which the case Was heard in the Court of Common Pl'eas, was thereupon signed and sealed by the court, and made part of the record in the case.

On the petition in error, filed by the plaintiff in the District Court, to reverse the judgment of the Court of Common Pleas, the case was reserved for decision here.

. *White § Waters,*for plaintiff in error:

An administrator’s account is conclusive only as to such matters as are embraced within it, and have.been the subject-matter of adjudication. It is the adjudication which makes it conclusive, and gives it the character of a final account. Matters not embraced within the 'account could not have been the subject of adjudication, and any question which may arise as to such matters is not *res adjudicata. Field*v. *Hitchcock,*14 Pick. 405; Swan’s Manual, 160, 161. And the administrator is not released from liability on matters not embraced in his account. *Swearingen*v. *Morris,*14 Ohio St. *424; Negley*v. *Gard,*20 Ohio, 310.

*376The plaintiff’s action is not barred on account of the notice he and his guardian received of the filing of the account, etc., because an examination of the notice would have given no knowledge of the matters now in controversy. The notice only operated as to the matters embraced in the account. *Paine*v. *Fox,*16 Mass. 128; *Sexton*v. *Chamberlin,*6 Pick. *422; Adm’x of Tracy*v. *Adm’r of Carr,*2 Ohio St. 431.

The plaintiff commenced his action within three days after the removal of the disability of infancy. 8 Ohio, 280, 14 Ohio St. 484; Story’s Eq. Pl. 427.

*John Gr. Marshall,*for defendant in error:

The plaintiff has no relief. The statute only applies where the party had no actual notice. S. & C. 599, sec. 169. There is no exception in favor of minors in this particular. Code, secs. 12-19; S. & C. 949, sec. 19; S. & C. 677, sec. 31; *Favorite*v. *Booher’s Adm’r,*17 Ohio St. 548.

Rex, J.

We think the Court of Common Pleas erred in its findings and judgment.

It appears by the agreed statement of facts: that on the ■30th day of March, 1865, the defendant was appointed administrator of the estate named by the Probate Court of Brown county; that on the 20th day of August, 1866, he rendered an account of his administration, which was settled by the court on the 15th of October following, at which time he was' ordered to distribute the balance found in his hands to the parties entitled thereto; that on the 6th of January, 1867, the defendant, having paid to the persons •entitled thereto, the money ordered to be distributed, presented an account thereof, duly proven and verified, to the Probate Court, which was allowed and ordered to be recorded, and the defendant and his sureties were thereupon exonerated and discharged from all further liability under the order of distribution, unless the account should afterward be impeached for fraud or manifest error; that the plaintiff is an heir at law of the intestate and one of the dis*377tributees of his estate, and had actual notice of the settlement of the account; that he arrived at the age of majority on the 4th day of May, 1867, and on the 7th day of the ■same month, commenced this proceeding to compel the defendant to account for the sum of money named, which, it is admitted by the agreed statement of facts, is a part of the assets of the estate of Thomas T. Philips, deceased; was not accounted for, by him, in the former account rendered, •and is still in his possession.

It is difficult to perceive how, upon principle, the retention ■of the money by the administrator can be sanctioned, yet, it is claimed tbat be is entitled to retain it, as against tbe .demand of tbe plaintiff, because tbe plaintiff bad actual notice of tbe settlement of tbe account, and did not except to it; and not having excepted at tbe proper time, tbe settlement is final, as to him, and a bar to all further demands on his part.

Tbe settlement made, we have no doubt, is, as against all persons interested, having actual notice, conclusive as to all matters included in tbe account; but, we are equally clear tbat it is not final, so as to bar further inquiry, in regard to matters not set out and specified in it.

Section 167 of tbe act of March 23,1840, to provide for tbe settlement of estates of deceased persons (S. & C. 566), provides tbat “ every executor or administrator shall be chargeable with the amount of tbe sale bills, . . . and also with all goods, chattels, rights, and credits of tbe deceased, wbicb shall come into bis bands, and wbicb are by law to be administered, although they should not be included in tbe inventory or sale bill, also with all tbe proceeds of real estate, sold for tbe payment of debts or legacies, .and with all tbe interest, profit, and income tbat shall, in any way, come to bis bands from tbe personal estate of the deceased,” and section 161 of tbe same act provides tbat every executor or administrator shall, from time to time, .as be may be required by tbe court, render accounts of bis .administration, until tbe estate shall be wholly settled, so *378that, taking these provisions of the statute together, it is apparent that an estate can not be held to be finally settled, until the whole estate administered has been fully accounted for, -and passed upon by the Probate Court, and that for the purpose of accomplishing that object, the executor or administrator may, at any time after the period for rendering his first account has elapsed, and before the proceeding is harred by the statute of limitations, be required to render an account for any portion of the estate remaining in his-hands, not included in any former account, notwithstanding, the fact that the former -account rendered has been passed upon and settled by the court.

The judgment-of the Court of Common Pleas is reversed, and the cause remanded to that court for further proceedings.

McIlvaine, C. J., Welch, White, and Gilmore, JJ., concurred.