St. Mary's Orphan Asylum v. Powell , 2 Miss. Dec. 81 ( 1881 )

Opinion.

Cooper, J.:

Whether the executor collected a greater amount than he had charged against himself for the rent of the lands of testator, and whether he collected from Dr. O’Leary the sum of $300, or any part thereof, is by the testimony left in doubt; we would therefore not disturb the decree but for other items in which error is apparent.

By the final account as filed by the executor, it appeared that the estate was indebted to him in the sum of $333.27; the commissioner, to whom the account was referred, reported that the executor was chargeable with the additional sum of $493.23, and that the sum of $30 ought to be deducted from the credits claimed by him; this report was confirmed. Subtracting the sum of $333.27, claimed by the executor, from the aggregate amount found against him by the commissioner, left him indebted to the estate in the sum of $189.96, instead of $129.96, as stated in the decree.

It was error to allow the executor a credit for the penalty and costs named in voucher 42; these items were caused by the default of the executor in not making payment of a charge devolved on the estate by law, and however honestly he may have acted, the consequences of his erroneous exercise of judgment must rest on him, not on the estate. The reasons given by him for his failure to pay the tax before the penalty attached are sufficient to excuse his action in the premises.

No point was made in the court below that the two vouchers, 30 and 39, represented the same credit; from the statements in the amended accounts, and from the wording of the vouchers, it seems possible, if not probable, that these receipts refer to the same payment. If appellants desire to contest the point, they can do so in the court below.

Decree reversed and cause remanded.