distribution should not be considered in the settlement of any account of the personal representative. The validity of trust provisions in the will or of other dispositions, the identity of beneficiaries under the will or of those entitled to take under the statute of distribution, and similar matters which affect the rights of parties to a distributive share of the estate, can only be effectively determined upon distribution.10 The probate court, upon the settlement of an account, can not hear and determine disputes as to the title of property;11 nor has such court jurisdiction to determine the existence of an alleged partnership where one of the alleged partners has not been cited to appear and is not before the court. 12 And the construction of the will is not involved upon a hearing to settle an account.1 13

§ 1570. Advancements to Distributees Considered Only upon Distribution.

Where the executor or administrator pays money to an heir or distributee during the course of administration and without an order of court, it is in the nature of an advancement. Such an expenditure does not properly belong in his account, but should be charged against the heir or distributee at the time of final distribution, and should be reserved for consideration upon the hearing for final distribution.14

10 Matter of Willey, 140 Cal. 238, 73 Pac. 998; In re Tasker's Estate, 14 Pa. Dist. Rep. 435.

11 In re Haas, 97 Cal. 232, 234, 31 Pac. 893, 32 Pac. 327; Buckley v. Superior Court, 102 Cal. 6, 8, 41 Am. St. Rep. 135, 36 Pac. 360.

12 Wright v. Wright, 11 Colo. App. 470, 53 Pac. 684.

18 Estate of Willey, 140 Cal. 238, 73 Pac. 998; Estate of Vance, 141 Cal. 624, 75 Pac. 323 14 Elizalde v. Murphy, 4 Cal. App. 114, 87 Pac. 245; Estate of Rose, 80 Cal. 166, 179, 22 Pac, 86; Estate of Moore, 96 Cal. 522, 527, 31 Pac. 584; Estate of Willey, 140 Cal. 238, 241, 243, 73 Pac. 998.

§1571. Annual or Intermediate Accounts and Effect of Order Settling the Same.

The final account of the personal representative is the all-important account and can not be dispensed with. If there has been no previous accounting by the personal representative, his final account must cover the entire period of his administration. The statutes, however, often require that the personal representative file annual accounts, or prescribe that the representative may be obliged to file an interlocutory account when so ordered. by the court upon its own motion or upon motion of an interested party. The statute, when requiring interlocutory or annual accounts, generally prescribes the manner in which they must be presented and settled, and the provisions of the statute must be followed in all cases. Such intermediate accounts are often allowed to be presented and settled ex parte, the purpose of such accounts being merely for the general information of the court or parties interested in the estate. Upon the settlement of an annual or intermediate account it is only necessary for the court to examine the accuracy of the receipts and disbursements. and ascertain the balance of money in the hands of the representative; it is not necessary that the court charge the representative with all the property of the estate, that being a matter for which he must account upon final settlement.15

Where annual or intermediate accounts are settled ex parte, such settlement is merely prima facie evidence of their correctness and they are open to subsequent objection and correction, even though no appeal therefrom has been taken. 16 In the absence of a statute to the contrary,

15 Estate of Bottoms, 156 Cal. 129, 130, 131, 103 Pac. 849.

16 Long v. Thompson, 60 Ill. 27; Bliss v. Seaman, 165 Ill. 422, 428,

the general rule is that annual or partial accounts are not conclusive upon interested parties who were not represented at their settlement, although the burden of proof is upon the objecting party to overcome the prima facie presumption of correctness.17 However, if interested parties appear and contest the settlement of such accounts, an order of settlement is conclusive upon them unless reversed upon appeal.18 As to the personal representative, however, a partial or annual account is usually considered conclusive as to himself, except as to clerical errors or mistakes which are the result of oversight or miscalculation, the correction of which does not operate to the prejudice of third parties. Such corrections may be made in a subsequent or final account.1

46 N. E. 279; In re Heath's Estate, 58 Iowa 36, 11 N. W. 723; Musick v. Beebe, 17 Kan. 47; Winborn v. King, 35 Miss. 157; Bachelor v. Schmela, 49 Neb. 37, 68 N. W. 378; Griggs v. Shaw, 42 N. J. Eq. 631, 9 Atl. 578.

An annual account should set forth receipts and disbursements and all other matters necessary to show the condition of the affairs of the estate. Estate of Bottoms, 156 Cal. 129, 103 Pac. 849. 17 Clement's Appeal, 49 Conn. 519; Crawford v. Clark, 110 Ga. 729, 735, 36 S. E. 404; Calnan v. Savidge, 68 Kan. 620, 75 Pac. 1010; Hoffman v. Hoffman, 88 Md. 60, 40 Atl. 712; Kittson v. St. Paul Trust Co., 78 Minn. 330, 81 N. W. 7; Bean v. Bean, 135 N. C. 92, 47 S. E. 232; Hall v. Hall, (Tenn. Ch.) 59 S. W. 203.

18 Alexander v. Bates, 127 Ala. 328, 28 So. 415; Matter of Bell, 142 Cal. 97, 75 Pac. 679; Young V. Scott, 59 Kan. 621, 54 Pac. 670; Appler v. Merryman, 91 Md. 706, 47 Pac. 1026; Cheever v. Ellis, 134 Mich. 645, 96 N. W. 1067; Matter of Union Trust Co., 65 App. Div. (N. Y.) 449, 72 N. Y. Supp. 977; Matter of Prentice, 160 N. Y. 568, 55 N. E. 275; In re Herren's Estate (Gatch v. Simpson), 40 Ore. 90, 66 Pac. 688; In re Brown's Estate, 190 Pa. St. 464, 42 Atl. 890; Herbert v. Herbert, (Tex. Civ. App.) 59 S. W. 594.

19 Estate of Carver, 123 Cal. 102, 55 Pac. 770; Arendale v. Smith, 107 Ga. 494, 33 S. E. 669; Tate v. Gairdner, 119 Ga. 133, 46 S. E. 73; Nowland v. Rice's Estate,

81572. Final Account and Time When Same Should Be Rendered.

The final account of a personal representative is the one which concludes the active administration of the estate and is made with the view of distributing the residue to those entitled thereto.20 An account is not a final account, even though so designated, if there are matters regarding the administration of the estate which are as yet uncompleted.21 Distribution and the discharge of the personal representative are separate and distinct from his final account. Such account may be settled irrespective of distribution and discharge,22 the settlement of the final account not operating as a discharge of the personal representative.28

The time within which the personal representative must file his final account is purely statutory, but the court has authority to extend the period.24 And even though the statutory limit has expired, a final settlement can not be required until the estate has been fully administered by the payment of debts and the collection of the assets.25 The time for final settlement may be extended by the court

138 Mich. 146, 101 N. W. 214; Matter of Douglas, 60 App. Div. (N. Y.) 64, 69 N. Y. Supp. 687; In re McIntosh's Estate, 158 Pa. St. 525, 27 Atl. 1042.

20 Matter of Grant, 131 Cal. 426, 63 Pac. 731; Vaughan v. Hines, 87 N. C. 445.

21 Thomas v. Hawpe, 35 Tex. Civ. App. 311, 80 S. W. 129.

22 Froebrich v. Lane, 45 Ore. 13, 106 Am. St. Rep. 634, 76 Pac. 351.

23 Whetstone v. McQueen, 137 Ala. 301, 34 So. 229; People v. Rardin, 171 Ill. App. 226; Miguez v. Delcambre, 109 La. 1090, 34 So. 99; Matter of Chase, 40 Misc. Rep. (N. Y.) 616, 83 N. Y. Supp. 62; In re Reynolds' Estate, 195 Pa. St. 225, 45 Atl. 726.

But see: Medley v. Shipes, 177 Ala. 94, 58 So. 304.

24 Ring v. Burton, 5 Me. 45. 25 Allison v. Abrams, 40 Miss. 747; In re Williams' Estate, 47 Mont. 325, 132 Pac. 421.

until the validity of a disputed claim has been determined,20 until a suit begun against the administrator has been decided,27 or until the conclusion of litigation by a legatee against the attorney of the administrator concerning an alleged illegal sale of real property of the estate.28

§ 1573. Settlement of Final Account, and Parties Concluded by Order of Confirmation.

The statutes uniformly demand that a notice of settlement of final accounts be given, in the manner designated by the statute, to all persons interested in the estate.29 Such interested parties may appear and contest the account, and after hearing the court makes its order either settling or rejecting the same. An order settling a final account is in effect a judgment and is conclusive upon all interested parties not laboring under disability, unless it be vacated or set aside upon appeal or as the result of a direct attack.30 The order settling his

26 In re Whitney's Estate, 60 Hun (N. Y.) 585, 15 N. Y. Supp. 468.

27 Beers v. Strohbecker, 21 Ga. 442; State v. Holtcamp, 266 Mo. 347, 181 S. W. 1007.

28 Vaiden v. Edson, 85 N. J. Eq. 65, 98 Atl. 635.

29 McClellan v. Downey, 63 Cal. 522; Shirley v. Thompson, 123 Ind. 454, 24 N. E. 253; Succession of Winn, 30 La. Ann. 702; McKenzie v. Webber Hospital Assn., 106 Me. 385, 76 Atl. 704; State v. Holtcamp, 266 Mo. 347, 181 S. W. 1007.

All persons who have had legal

notice in the manner prescribed by statute of the hearing of the final account, are concluded by the decree.-Ryan v. Hutchinson, 161 Iowa 575, 143 N. W. 433.

30 Sherman v. American Cong. Assn., 113 Fed. 609, 51 C. C. A. 329; Toland v. Earl, 129 Cal. 148, 79 Am. St. Rep. 100, 61 Pac. 914; Matter v. Pichoir, 146 Cal. 404, 80 Pac. 512; People v. Kohlsaat, 168 Ill. 37, 48 N. E. 81; Tucker v. Stewart, 121 Iowa 714, 97 N. W. 148; Graffam v. Ray, 91 Me. 234, 39 Atl. 569; In re Williams' Estate, 47 Mont. 325, 132 Pac. 421; Shelby v. Creighton, 65 Neb. 485,