Opinion of the Court-Beatty, C. J. dred dollars. The estate did not owe, apparently, a dollar, except the expenses of testator's last sickness, which only lasted about fifteen days. At the end of nineteen months the personal property is all gone, and the acting executor brings out the estate as $5,341.22 in debt to himself, having in the meantime paid legacies to the amount of $3,538. In other words he brings the estate in debt to himself some $1,800 over and above what he has paid to the legatees. If we This certainly suggests to the mind at once some mismanagement of the affairs of the estate by the executors. examine the items of expense in detail, that impression certainly is not removed. When the testator died he was half owner of a drinking saloon, which, it seems, made a profit of nearly $900 in the fourteen or fifteen days during which he was sick. After his death, the executor Medin, who was also part owner of the saloon, made haste to sell the same, nominally, to Mark Lovely and Spiro Vicanovich. He did not wait to qualify as executor, he did not have any appraisement of the stock on hand by any reliable and accessible person. He did have it appraised by a Mr. Dougherty, but he was not a resident of the State, and was not produced in the trial of this motion in the court below. While the sale of the saloon was made nominally to Lovely and Vicanovich, there is certainly testimony enough to show that Medin himself was the real purchaser of at least one-third of the establishment, and indeed some testimony tending strongly to show that Lovely was then an agent of Medin, and that neither he nor Vicanovich paid anything for their interest in the saloon at the time of the sale. That the business was carried on with the means of testator, and nothing paid to Medin except the proceeds of sales from the liquors until he was paid This was certainly neither a prudent nor commendable method of proceeding. It is, to say the [*104] least of it, calculated to throw suspicion on his conduct and motives. up. Mr. Medin selects Mr. Dougherty as the appraiser, but he is at once the purchaser and the seller. His flimsy attempt to show that he only came into the concern after Opinion of the Court-Beatty, C. J. Lovely bought it, is only calculated to make his motives the more liable to an unfavorable interpretation. When at a subsequent period he qualifies as executor, instead of stating the amount of money and liquors on hand in the saloon in which testator had a half interest, he only returns $1,295.47 as the net proceeds of testator's share, thus swallowing up more than half of the testator's share without any showing of what had become of it. He makes the funeral expenses of the testator (a saloonkeeper in fair circumstances, but not very wealthy) over $1,200. He pays large assessments on mining stocks without any order of the probate court for so doing. He charges interest for money he probably never borrowed, or if he did borrow it, it was without the shadow of authority so far as shown by this transcript. What authority he may have derived from the will of the testator or the powers of attorney of the legatees we know not. He paid one attorney $500 for nothing that we can see, unless it was for advising him how to squander the estate. He pays, or claims to have paid, another, the same amount for compelling himself to admit his co-executor to a participation in the management of the estate. When an estate is involved in litigation an executor has a right, and it is his duty, to employ counsel at the expense of the estate to defend its interests, but he has no right to charge the estate with the expense of counsel for doing what he himself should do. An executor is paid a percentage for keeping the accounts and attending to the ordinary affairs of an estate. If he is so ignorant as not to to be able to do this himself, he must out of his percentage pay for the necessary assistance. In this case, the estate was involved in no litigation re- ́ quiring the employment of counsel, except the litigation about the title to real estate. For that there is a separate charge, distinct from the two items of $500 each, to [*105] which we have alluded. We have alluded to all these extravagances to show the necessity for immediate action on the part of the probate court. That court should immediately order the executors to file Opinion of the Court-Beatty, C. J. an account making a full showing of all the property and assets that have come to their hands up to the date of filing such account. The court should cause a settlement to be made with the executors, and all proper orders made to stop the unnecessary waste of the estate. Without the will before us, we cannot tell what are the necessary orders to be made. Whether the estate shall be distributed among the legatees and devisees, placed in the hands of an administrator with the will annexed, or continued in the hands of the present executors, with such orders about the management of the estate as will stop the reckless expenditures heretofore indulged in, we cannot determine from the transcript before us. One of the great difficulties presented to our minds in disposing of this case is, to determine what the probate court may review, determine, or adjudicate when the case goes back for trial. The 239th section of the probate act seems to provide that what is adjudicated in one settlement of an executor's or administrator's account shall not be open to adjudication in any future settlement in the probate court. That a final settlement with an executor or administrator is and ought to be considered res adjudicata, and not open to further question, except when a bill in chancery is filed charging frand, is a well settled principle; but to hold that a partial and incomplete settlement should preclude the probate court from further examination of the executor's accounts, seems, to say the least, rather inconvenient. In obedience, however, to what appears to be the plain letter of the statute, we must so hold. But in holding that a partial account, acted on by the probate court, is to be considered as res adjudicata, we have high authority for saying it is only to be so treated as to those matters which the account and the decree of the court show were fairly before the court for adjudication. The general result at which the court arrives, even in a final settlement, is immaterial. If the probate court finds, for instance, that an executor has properly paid out all the estate that came to his hands, this will not prevent one interested in the estate from Opinion of the Court-Beatty, C. J. [*106] *proceeding in the probate court to compel the executor to account for property not mentioned in his account. The settlement of an account is only res adjudicata as to those matters actually embraced in the account. For this principle see the very sensible opinion of Chief Justice Shaw in the case of Field v. Hitchcock (14 Pick. 405). It has also been held that where a mistake appears in a former settlement, it may be corrected in a subsequent one. (1 Pick. 159-60.) It may be difficult to determine, under this latter rule, where the line is to be drawn as to that which may be corrected as a mistake and as to that which shall stand as res adjudicata. It would at least be safe, if anything is to be corrected which has once been passed on, to say everything is liable to correction which shows upon its face that it is erroneous; that there has been a mistake either of fact or law as to that item. This would allow the court, at any time before final settlement, to correct its own errors, but not to reopen the proof as to accounts allowed, except perhaps in cases whero the account showed error on its face, but did not show (without explanation) the extent of the error. So, too, where anything is admitted by the executor or administrator to be a mistake, all this may be corrected. But if the mistake or error are only to be shown by going anew into the proof, this should be held as res adjudicata, and not liable to be opened to new testimony. Adopting these rules, then, let us see what can be investigated in a new trial of this motion. There was an account filed by one of the executors in February, 1864, but no notice seems to have been given as to the settlement of this account, and no action seems to have been taken thereon. In February, 1865, a second account was filed, not embracing what was contained in the first, but merely setting out with the balance as shown by that account, and continuing the account from that time down to the filing of this second account. Upon the filing of this account, notice was given that the court would hear exceptions to the same, Opinion of the Court-Beatty, C. J. and take such steps as the law requires for the settlement thereof. This case seems to have been [*107] regularly brought to a hearing, and the account was examined. But, in approving this account, we hold the first account was in no manner approved or acted on. Had the first account been properly approved, then it would have been proper to commence where that left off. But as the first account was never approved, the mere assertion in the second account of what appeared as the balance due on the first cannot be held to preclude an examination into the items of the first. The first account has never been the subject of adjudication. That the court and the counsel who drew up the decree of settlement considered only the latter account as adjudicated is apparent from the language of the decree. That decree concludes as follows: "And it appearing to the court, after due examination, that said account contains a just and full statement of all the moneys received and disbursed by said executor from the twelfth day of February, A. D. 1864, the date of the preceding report of said executor, to the twelfth day of February, A. D. 1865, including all sums of money belonging to said estate which came to his hands as such executor, or were received by another by his order or authority for his use as such executor, during said period; that the amount of said money thus received was $6,483.83, and the amount thus disbursed $11,825.06, leaving said estate debtor to said executor in the sum of $5,341.221; that for the items of disbursements proper vouchers are produced to the court; and it being proved by the affidavit of said executor, annexed to his account, that the items of his expenditure named and charged in said account have actually been paid and disbursed by him, at the place where, the date when, and the parties to whom the said payments are stated in the said account to have been made respectively. And the court having duly considered the said report and account, and the proofs and allegations and matters aforesaid, the court finds that the said account is just, true, and correct, and entitled to be allowed and approved. And now, on motion of G. D. |