¶1Opinion.
¶2This proceeding to “surcharge and falsify” the final account of the appellant as executor of Mrs. Ourrie, instituted by persons interested, as authorized by section 2075 of the Code of 1880, resulted in a decree charging the appellant with a sum of money which had been allowed to him after a contest in the settlement of his final account. The single question involved is this: IJpon the whole case as presented by the evidence taken in the settlement of the final account, and in this proceeding to surcharge and falsify it, was it proper to allow the appellant credit for the sum in controversy, or should he be charged with said sum ?
¶3A careful examination of all the evidence has failed to suggest a satisfactory reason for changing the decree made in the settlement of the final account. It was then proven that by an agreement between the testatrix and the appellant he ivas to resort to legal proceedings to collect the claims at his own expense, and was to have half of his collections as his own, and that he employed counsel to bring suit upon the claim, and paid his charge for the service. There is in this proceeding no legal evidence to cast a doubt on the claim of appellant as established by the evidence in the final settlement. The only competent evidence in this proceeding (that of Mrs. Johnson), tends strongly to support the claim of the appellant as maintained in the decree made in the final settlement of his account. We have searched in vain for any evidence to authorize a change of the decree formerly made. There was no. inconsistency in the position of the appellant as executor, and as claimant of one-half of the judgment in favor of his testatrix. Ilis right was acquired in the lifetime of the testatrix, and was not impaired by his becoming executor. It was not necessary for the agreement by which the appellant became entitled to half of the proceeds of the claim to be in writing, nor was his claim to this half such a claim against the decedent as was required or allowed to be probated and registered.
¶4Decree last made reversed, and first decree to stand as made.