Opinion of the Court--Beatty, C. J.

Keeney, Esq., attorney for said executor, it is ordered and decided that the said account and report of Marco Medin, executor as aforesaid, be and the same are [*108] *hereby in all respects, as the same were rendered for settlement by the said Marco Medin, executor, etc., approved, allowed, and settled."

If, then, only the second account was properly adjudicated, all that was embraced in the first account is open to inquiry. The court may inquire into the funeral expenses, both as to what was expended and as to the reasonableness of the expenditures. It may inquire into the circumstances of the sale of the Uncle Sam stock, as to whether it was a fair and bona fide sale. The same taxes are admitted to be included in both bills: they must of course be excluded from the first. Inquiry may be made into the matter of rents. from the death of testator to February 12, 1864, the value of liquors on hand, the fairness of the sale, etc. Indeed, the whole question is open, so far as the period from the death of testator to February 12, 1864, is concerned; and the executor should be compelled to make a full showing as to this part of the affairs of the estate, both as regards the property which came to his hands and as to the repairs he made. His vouchers for expenditures in repairs should be produced, or if lost, accounted for.

Inquiries may also be made as to whether these expenditures were reasonable and proper. Of course the executor must account for jewelry, etc., omitted from the invoice. With regard to the compromise affair, we are more at a loss than in regard to any question presented in the record. Here is an item of the account of February, 1865. If anything was adjudicated in regard to this item, it was: first, determined that this amount was paid; second, it must also have been determined that it was rightfully paid; for these are the very questions presented as to each item of an account presented for settlement. Whether it was paid, was a question to be determined by proof. Whether it was rightfully paid, was a mixed question of law and fact. If the executor, on his own motion, could pay this amount of money and hold the estate responsible, then we must in this case pre

Opinion of the Court-Beatty, C. J.

sume that it was proved to the satisfaction of the court that this was rightfully paid. But we incline to the opinion that an executor, without the order of the court, could not lawfully make such payments. A suit pending *against the estate at the time, we are inclined to [*109] think, under the provisions of section 203 of the

probate act, might, upon the order of the probate court, approving such a course, have been compromised, and the money paid to effect a settlement. But the executor, without the advice of the court, had no right to make such a compromise.

He did, however, make the compromise; and as he was both executor and tenant in common, he must be considered as having made it in his capacity of tenant in common.

The law is well settled that when one tenant in common buys in an outstanding title, it inures to the benefit of all his co-tenants, if they elect to bear their share of the burdens of the purchase. (Kent's Com., 311, note C, 10th edition.) But the co-tenants cannot, we think (unless they have previously assented to or encouraged the purchase) be compelled to contribute. It appears to be purely a matter of choice with them whether they will contribute and take the benefits of the purchase, or stand on their former rights. We have not met with any reported case where a co-tenant has been forced to contribute, where he fairly and openly chose to renounce the benefits of the purchase.

The devisees in this case are then entitled either to contribute or reject the terms of this compromise. We think that right had not been and cannot be properly presented to them in the probate court. This is a matter to be settled between the parties amicably, or in a court of equity. The probate court has nothing to do with it.

The executor clearly had no right to borrow money for the estate unless expressly authorized by the will, and the charge for interest in his second account must be struck ont unless so authorized. An executor has no right to speculate for or with the estate. If he held mining stock which was likely to be forfeited before he could apply to the court for instructions, he might be justified in paying something

Opinion of Beatty, C. J., on rehearing.

to preserve it. But he is certainly not justified in borrowing money for mining speculations.

If he held stock liable to large assessments, he should have applied to the court for leave to do one of two things: either to sell the stock, or, better still, if the estate was surely solvent without the stock, to turn it over to the legatees, and let them sell, or take their chances on speculation with it.

[*110] *The order of the court below must be reversed and set aside.

The petitioners will be allowed to amend their petition if they so desire, and further proceedings will be had in accordance with the views expressed in this opinion.

RESPONSE TO PETITION FOR REHEARING. By the Court, BEATTY, C. J.:

In this case a petition for a rehearing has been filed, indicating that the original opinion herein has, to some extent, been misunderstood. Had counsel read the opinion a little more carefully, it appears to us at least a portion of the matter contained in the petition might have been omitted.

However that may be, we will endeavor to make ourselves fully understood on some of the points referred to.

We did not hold, as counsel say, "that the 239th section of the probate act makes the settlement of an executor's or administrator's account final and not open to further question, except by bill in chancery charging fraud." At least we did not hold it in the unqualified terms used by counsel. We distinctly held that the court, notwithstanding section 239, might, at any time before final settlement, correct its own errors, whether of law or fact. That any error apparent on the record might be corrected before final decree, but the court could not open the proof as to the matters of account already passed on and settled by interlocutory decree.

It is the failure to notice this distinction which seems to have misled counsel in various particulars.

Opinion of Beatty, C. J., on rehearing.

Counsel complain that this court assumes that there never was but one settlement of the executor's accounts upon notice, whilst in fact there were two such settlements. That they were injured by this assumption of the court. That no such point was ever made by the opposing counsel, and if it had been, they could have shown that it was unfounded. That if the record fails to show both settlements it was not the fault of respondents, it having been made up solely under the direction of appellants.

*The plaintiffs (appellants) attack certain payments [*111] and expenditures of respondents. The respondents say these expenditures cannot be inquired into, because they have already been passed on by the probate court. To show that they have been passed on by that court, respondents refer to a decree which clearly shows that part of these items have been passed upon, but fails to show any adjudi. cation as to other portions of the account. This decree is contained in the record before this court.

We certainly could not know that respondents had introduced evidence in the court below which was not contained in the statement of the case, or that their answer contained matter not copied in the record. If the transcript failed to contain any portion of the evidence or pleadings material for the defense, it was the business of respondent's counsel to have the record amended.

Reference is made in the petition to various expressions in the transcript which counsel seem to think indicate that there were two decrees actually made in the probate court in regard to these accounts. We think no one, not otherwise acquainted with the fact, would ever have drawn such inference from the record. All the expressions quoted are entirely reconcilable with the existence of but the single decree found in the record, except one word. The word decrees is used in one place where it should have been in the singular, (decree) if there was only one settlement. But when that word appears in the record, it seems to be shown by what immediately follows that the s was a mere clerical

error.

The transcript is so badly made up, that we are at a loss

NEV. DEC.-7

Opinion of Beatty, C. J., on rehearing.

sometimes to understand how certain matters got into it. The body of the answer, as contained in the transcript, makes no reference to any exhibits. But immediately after the affidavit to the truth of the matter contained in the answer follow the two accounts, and then this sentence: "That upon the filing of the accounts such proceedings were thereafter had, that the court rendered and entered the following decrees." After this follows the decree settling the last account only. Then comes a statement of the evidence. On the margin of these accounts is marked, "Answer continued." We infer then that these accounts and this de

cree must have been attached to the answer as ex[*112] hibits. But because the clerk uses the *plural de

crees, we could not well infer that there was another decree attached as an exhibit to the answer which he did not copy. Especially could we not so infer when the answer wholly fails to aver the existence of any such decree.

But whilst the record utterly fails to show in any manner that there was more than one decree in regard to the settlement of accounts in this estate, we will so far modify our former opinion as to direct the court below to give to the first account, if it should appear to have been properly settled upon notice and a regular decree of settlement made thereon, the same effect that we have given to the second account, which was settled in March, 1865.

Whatever upon the face of the account and decrees seems to have been once adjudicated must be considered closed, except in so far as the record itself may show some error in the former decree. If it should appear that this first account was regularly passed on and settled, it will of course much abridge the extent of inquiry in any subsequent trial. We cannot, in the absence of what is claimed to be a regular decree, determine its character or sufficiency. To prevent misunderstanding, we will say the first item of the first account is for $1,480 cash on hand. The passage of this account would not prevent the appellants from showing there was cash on hand at death of testator other than or beyond the $1,480.

The next item is $3,573.75, rents. The passage of this