#

final account is conclusive upon the executor,31 the administrator,32 interested parties including the sureties upon the representative's bond, and the person rendering the final account is bound by it in all matters. And the order of settlement is conclusive as to all matters involved in the account although in fact no objections were made and no contest had.35

It is only those persons whose rights are affected by the settlement of the representative's final account who are charged with statutory notice and who are bound by the order of settlement.36 And, further, the conclusiveness of the decree settling a final account depends upon the fact that all the statutory requirements as to filing, notice and the like have been strictly complied with. Those who are not made parties to the proceeding by citation or notice in the manner prescribed by statute, and who do not appear, are not bound by the order settling the account.37 And the order settling the account is

101 Am. St. Rep. 630, 91 N. W.
369; Matter of David, 44 Misc.
Rep. (N. Y.) 337, 89 N. Y. Supp.
927; Skillin v. Central Trust Co.,
80 App. Div. (N. Y.) 206, 80 N. Y.
Supp. 188; Yocum v. Commercial
Natl. Bank, 195 Pa. St. 411, 46
Atl. 94; Vaughn v. Walsh, 122
Wis. 486, 100 N. W. 840.

31 Butterfield v. Smith, 101 U.S.
570, 25 L. Ed. 868.

32 Singleton v. Garrett, 23 Miss. 195; Lambeth v. Elder, 44 Miss. 80. 33 Harter Co. v. Geisel, 18 Cal. App. 282, 122 Pac. 1094.

Liability of sureties on bond of personal representative becomes fixed upon settlement of his final account, see § 1356.

34 Succession of St. Dizier, 132 La., 657, 61 So. 727.

35 Kowalsky v. Superior Court, 13 Cal. App. 218, 221, 109 Pac. 158.

36 Crowley v. Mellon, 52 Ark. 1, 11 S. W. 876.

37 Canfield v. Canfield, 118 Fed. 1, 55 C. C. A. 169; Shirley v. Thompson, 123 Ind. 454, 24 N. E. 253; Succession of Winn, 30 La. Ann. 702; Miguez v. Delcambre, 109 La. 1090, 34 So. 99; Bassett v. Fidelity etc. Co., 184 Mass. 210, 100 Am. St. Rep. 552, 68 N. E. 205; Hetzel v. Easterly, 96 App. Div. (N. Y.) 517, 89 N. Y. Supp. 154; In re Killan's Estate, 172 N. Y. 547, 63 L. R. A. 95, 65 N. E. 561;

not conclusive where settlement is had prior to the expiration of the period within which claims may be presented,88 or where notice to creditors has never been published."9

§ 1574. The Same Subject: As to What Matters Not Conclusive.

An order settling an account has the effect only of closing the account up to the time of approval, and it is not conclusive as to matters subsequently arising.40 It is conclusive as to the amount of property received and the amount disbursed;41 but is not conclusive as to amounts received by the representative which are not charged to

Where the statute gives ample protection to the personal representative by permitting him to sue out a citation running against unknown parties, and he does not do so, an heir of the decedent who was not cited and did not appear is not estopped by an order settling the final account of the personal representative, from moving to compel an accounting. -In re Killan's Estate, 172 N. Y. 547, 63 L. R. A. 95, 65 N. E. 561, by a divided court, four to three. 38 Shirley v. Thompson, 123 Ind. 454, 24 N. E. 253.

The settlement of a final account prior to the time specified

by statute within which such an account may be settled, binds only those who were parties to the settlement.-Jones v. Harbaugh, 93 Md. 269, 48 Atl. 827. 39 Van Liew v. Barrett & Barrett Beverage Co., 144 Mo. 509, 46 S. W. 202.

40 People v. Rardin, 171 m. App. 226; Redington Hub Co. v. Putnam, 76 N. H. 336, 82 Atl. 715.

An ex parte settlement made under the statute, though accompanied by notice of proof of debts, does not necessarily preclude relief in equity upon a claim not presented or reported therein. Such a settlement is deemed prima facie correct only so far as it adjusts the account to the date mentioned.-American Bank & Trust Co. v. Doug lass, 75 W. Va. 207, 83 S. E. 920. 41 Remshard v. Renshaw, 102 Ark. 309, 143 S. W. 1092.

43

him either in his account or by order of court.42 An order settling a final account has the force of a judgment as to all matters necessarily involved in the settlement.* It is not, however, conclusive as to matters not embraced therein, but only as to those matters which are involved in the account and passed upon judicially by the court.** Matters pertaining to the administration of the estate which are omitted from the account are not affected by its settlement.45

§1575. Order Settling Final Account Not Subject to Collateral Attack.

A final account settled by a personal representative in accordance with the statute in force at the time has the effect of a final judgment and is binding upon all interested parties until set aside or corrected, and this can be done only for those reasons which would warrant the same procedure as to any other judgment.16 Having the

42 In re Butler, 66 Misc. Rep. 409, 123 N. Y. Supp. 279.

43 Waring v. Lewis, 53 Ala. 615; In re Stott, 52 Cal. 403; French v. Woodruff, 25 Colo. 339, 54 Pac. 1015; Succession of Hoss, 42 La. Ann. 1022, 8 So. 833; Crump v. Hart, 189 Mo. App. 572, 176 S. W. 1089; Shelby v. Creighton, 65 Neb. 485, 101 Am. St. Rep. 630, 91 N. W. 369; McAfee v. Phillips, 25 Ohio St. 374; Sager v. Lindsey, 118 Pa. 25, 13 Atl. 211.

44 Hartsel v. People, 21 Colo. 296, 40 Pac. 567; Bayless v. People, 56 Ill. App. 55; Crosley v. Calhoon, 45 Iowa 557; Nelson v. Barnett, 123 Mo. 564, 27 S. W. 520; Hibshman v. Dulleban, 4

Watts (Pa.) 183; Boomhower v.
Babbitt's Admr., 67 Vt. 327, 31
Atl. 838.

45 Canfield v. Canfield, 118 Fed. 1, 55 C. C. A. 169; Matter of Adams, 131 Cal. 415, 63 Pac. 838; Graham v. Russell, 152 Ind. 186, 50 N. E. 806; Tucker v. Stewart, 121 Iowa 714, 97 N. W. 148; Porter v. Long, 124 Mich. 584, 83 N. W. 601; Matter of Meyer, 95 App. Div. (N. Y.) 443, 88 N. Y. Supp. 798; Corse v. Chapman, 153 N. Y. 466, 47 N. E. 812; Tidball v. Shenandoah Natl. Bank, 98 Va. 768, 37 S. E. 318.

46 Hatcher v. Dillard's Admrs., 70 Ala. 343; Floyd v. Newton, 97 Ark. 459, 134 S. W. 934; Reynolds

effect of a final judgment, the settlement of the final account can not be attacked collaterally; it can be modified or set aside only upon appeal or in a direct proceeding upon the ground of fraud or other equitable consideration. It can not, however, be collaterally attacked upon

48

the ground of fraud. By statute, however, and contrary to the general rule, in some jurisdictions the settlement of a final account or a discharge of the personal representative obtained by means of fraud practiced upon the heirs or upon the court, may be collaterally attacked."

§ 1576. Duty of Personal Representative to Account.

An executor or administrator occupies a position of trust to manage and settle the affairs of the estate and to cause it to be distributed to those entitled thereto. One duty imposed upon him is the duty to account for his stewardship.50 This duty is imposed in all cases except where no property has come into his hands so that there is nothing for which he can account,51 or where he has given a bond to pay all debts and legacies.52 Where the

order settling the final account and discharging the personal representative, see § 1390.

48 Bonner v. Gorman, 71 Ark. 480, 77 S. W. 602.

49 Pass v. Pass, 98 Ga. 791, 25 S. E. 752; Knox, Lewis & Co. v. Rayner, 146 Ga, 146, 90 S. E. 853.

50 Pearse v. Green, 1 Jac. & W. 135; Willis v. Berry, 104 La. 114, 28 So. 888; Matter of Stanton, 41 Misc. Rep. (N. Y.) 278, 84 N. Y. Supp. 46; In re Houser's Estate, 177 Pa. 441, 35 Atl. 671.

As to what court may compel the personal representative to account, see § 1389.

An executor or administrator who has been removed from office is not relieved of his duty to account, see § 1339.

As to the right of an adminis

trator de bonis non to the possession of the assets, and as to his duty to account and to compel an accounting from his predecessor, see § 1252.

As to who are entitled to letters of administration de bonis non, see §§ 1248, 1249.

As to the powers of an administrator de bonis non, see § 1251.

As to the right of the executor of a deceased executor to represent the first testator, see § 1231.

51 Territory v. Bramble, 2 Dak. 189, 5 N. W. 945; Walker v. Hall 1 Pick. (18 Mass.) 20; Bestford's Estate, 10 Kulp (Pa.) 223.

52 See § 1364; Tilton v. Tilton, 70 N. H. 325, 47 Atl. 256; Leonard v. Clark, 24 R. I. 470, 53 Atl. 636.

In an action on a bond making an executor personally liable for