WOODRUFF v. THE BANK OF THE STATE OF ALABAMA et al., 4 Ala. 292

GOLDTHWAITE, J. The proceedings in this case, so far as they relate to the settlement of the estate by Commissioners, most probably had their origin in consequence of some interest which the Judge of the County Court had in the estate to be settled, either as counsel or otherwise. We say most probably, because it is only in such cases that a Judge of the Circuit Court is authorized to issue a commission.

Upon the presumption that our supposition is correct, and because these proceed-' ings if in fact had under the statute which will presently be recited, are at present so fatally defective that no judgment can be rendered upon the record. We consider it proper to. state what the correct practice under this statute is, and shall then show in what respect this record differs from it.

The statute provides, that in all settlements hereafter to be made by executors, administrators or guardians, with the Orphans Court, in which the Judge of the said Court may have been employed as counsel, or may otherwise be interested in such settlement, it shall be the duty of the said Judge to give immediate information of the fact to one of the Judges of the Supreme or Circuit'Court, who shall thereupon issue a com-, mission to three persons of the proper county, directing and empowering them to proceed to make said settlement under the rules and regulations now prescribed by law.

Such settlement when made as aforesaid shall be duly recorded by the Clerk of the said Court, and shall have all the force and effect of settlements made by the Judge of said Orphans’ Court. — [Dig. 252, §41, 42.] In Lister v.

Vivian, [8 Porter, 375,] where the construction of the same statute was involved, we held it necessary that the commission issued by the Judge of the Circuit Court should appear of record, it being a special authority, and the only warrant for the acts of the Commissioners; and also that its existence and legality could not be supplied by intendment or inferred from a recital in the minutes of the Clerk or in the report of the Commissioners, but the commission itself should appear, that it might be seen whether it furnished a warrant for the acts done under its authority..

In proceedings subsequent to and under the commission,the first step proper to be taken is to enter it upon the minutes of tho Orphans’ Court, and then the Commissioners are at once invested with all the powers and duties of the Judge of the County Court so far as applicable or necessary to a final settlement of the particular estate, and their mode of proceeding with reference to the estate will be precisely the same as that pursued by Judges of the County Court in other cases. In the case of Lister v.

Vivian, it was considered an bpen question whether such Commissioners can render a final decree, but we are satisfied they have the same powers in this respect as the County Judge, under the acts of 1822 and 1830. [Dig. 252, §34, 37.] This decree when made ought to ascertain with precision the amount for which a recovery is given in favor of each individual, and this amount should be for the true dividend produced by a distribution of the assets equally to the creditors, unless a distinction is required t'o be made in favor of some of the preferred debts under the statute, such as funeral expenses, &c.

Upon the rendition of such a decree it might be proper to provide a stay of execution for some short period in order that the administrator should have the opportunity to pay the respective creditor's without the costs attendant upon an execution. On the rendition of such a decree, and when recorded, the Clerk .of the County Court would be authorised to issue execution after the expiration of the stay.

It will be seen npon examination of the statement prefixed, that those proceedings do not conform to the opinions now expressed, as the commission is not set forth on the record, nor is there any decree in point of fact, for the report merely ascertains the debts allowed, the assets and the dividend which, under the report, would be coming to each, but it is entirely deficient in ascertaining who the creditors are that are entitled to judgment, and particularly in omitting to ascertain what Bank is intended as the owner of certain judgments.

The report not being entitled to any consideration as a decree there was no necessity or propriety in suing out a writ of error; the proper remedy to prevent injurious effects from executions is to supersede them when irregularly issued. The writ of error must be dismissed, and it would be prudent for the Commissioners to amend their report and render a final decree in favor of creditors before the latter seek to sue out execution.