SHADDEN vs. STERLING'S ADMR'S, 23 Ala. 518

PHELAN, J. The refusal of the probate judge of Benton to proceed with the settlement of the accounts of Griffin and Whiteside, as administrators of Sterling-, to which they had been cited by him at the instance of Shadden, one of the creditors, and the dismissal of the citation, is neither an interlocutory nor final order or decree from which a writ of error will lie. The writ of error will, therefore, have to be dismissed.— The case is not unlike that of Brennan v. Harris, 20 Ala. 185.

But a mandamus is prayed for in this event, and we are called upon to examine the grounds upon which the refusal to proceed with the settlement is placed by the probate judge, in order to determine the propriety of this application. The refusal to proceed is based upon the two entries found in the record : 1st. That of the 4th of January, 1888, by which it appears that the administrators reported the estate insolvent, which report was received and ordered to be recorded; and 2d.

That of March term, 1838, from which it appears that an account was stated with the Orphans’ Court at that time, showing assets to the amount of $1309 98, and “receipts, vouchers and allowances” for a small amount over that sum, to-wit: $1328 50.

This, together with the parol proof made March 22d, 1850, when the court refused to proceed further, that notice had been duly given by publication, previous to the statement of the account aforesaid in March, 1838, for creditors to appear for final settlement with the administrators at that term, makes the whole ground as shown by the record upon which the Probate Court dismissed the citation calling upon the administrators, at the instance of Shadden, to make a final settlement, and refused further to proceed. The ground is not sufficient.

The report of the insolvency of this estate, made by the administrators the 4th of January, 1838, and received by the court and ordered to be recorded, placed this estate in the care and jurisdiction of the court as an insolvent estate, to be settled up, and the assets distributed among the creditors accordingly.—West v. Clarke, 5 Ala. 117.

The order then to be pursued, or, if nothing was done towards a settlement until after the statute of 1843 (Clay’s Dig. 192, et seq.) the order to be pursued after the passage of that law, will be found laid down in sundry decisions, (7 Ala. 923; 9 Ala. 925; 10 Ala. 915 ;) but more particularly in Steele v. Weaver, 20 Ala. 540, and Weaver v. Weaver, 20 Ala. 557.

We cannot find that anything was done to annul the report of insolvency which had been made, (even if that can be done in the same court;) and as long as that was in force, it was not in the power of the Orphans’ Court, on a settlement with the administrators, to allow “ receipts, vouchers and allowances,” as it seems was done to the extent of $1328 50. The only vouchers for money paid out after a report of insolvency that can be allowed on settlement with the administrator, are for the “last sickness and necessary funeral expenses.”— Clay’s Dig. 192 § 2.

The settlement, then, or what purports to have been a settlement, with the administrators in March, 1838, if every thing else had been regularly done, which was not the case as far as this record discloses, was a settlement not authorized by law, because it was not conducted in the matter of allowing credits and vouchers as the settlement of an insolvent estate should be.

The case stands now, as it stood in 1838, as an insolvent estate under the care and jurisdiction of the Probate Court of Benton County, and it is the duty of the judge of that court, at the instance of any creditor or creditors, to cite the administrators to a settlement, and to proceed to final settlement with the administrators according to law ; and when the amount in their hands liable to distribution is ascertained, to order distribution among the creditors as of an insolvent estate. A rule nisi will be ordered to issue to the probate judge of Benton, in conformity with the foregoing views.