¶1It is obvious from the relative situation of these parties and the tenor of the receipt, that it was their expectation at the time of its execution, that this amount at least, of the estate of Elizabeth Camp, would remain for the defendant in right of his wife, on a final settlement of the estate; and, in such event, an acknowledgment of the receipt of so much, as heir, would have been a sufficient accounting for the property specified and estimated in the receipt. The settlement contemplated in the receipt was such an one as that the respective right of the parties could be ascertained and determined by it. The plaintiff did thereby take upon himself to effect, such a settlement as that the defendant could ascertain from it wherefore the goods were demanded before the plaintiff would have a right to demand them; And it must be confessed that upon an inspection of the whole records relating to these estates, (which are very voluminous) such a settlement does not appear.
¶2The consolidation of the two estates was an improvident act; for the surplus of the one was not liable to be taken to eke out the insolvency of the other: besides, the whole of the estate of Luke Camp, not otherwise accounted for, does not satisfactorily appear, from the records offered, to have gone into the consolidation. The plaintiff has thereby rendered it impossible for him to show, at least by this record, how the estate of Elizabeth Camp, stands on settlement, or indeed whether it is settled at all. The instruction to the Jury therefore, as to these records, was incorrect; and the verdict is, for that cause, set aside, and a new trial granted.