On appeal from fhe probate court of Adams county ,• Hon. C. L. Dubuisson, judge.

John Calvit and J. J. Galtney, two of the heirs of Abram Galtney, deceased, petitioned the Adams probate court to compel Pearce Noland to render an account of his acts, &c., as one of the executors of said Abram Galtney.

Noland answered, showing that his co-executor, Joseph Galt-ney, deceased, had been the sole acting executor, and had administered and divided the estate, and that he had no assets himself, and never had, except as an heir in right of his wife.

Exceptions to the answer were filed and allowed, and another answer was filed by Noland; in which he admits, that letters testamentary were granted jointly to himself and Galtney. He denies more specifically than before, that he ever acted as executor or received any part of the assets of the estate. He also asserts that the records will show that the co-executor has administered and accounted to the probate court; but he does not know whether he ever presented a final account of his acts as executor.

The letters testamentary were jointly executed in 1828.

Various papers touching the administration of the estate by Jos. Galtney as executor, in some of which, reference appears to be made to Noland as, one of the executors, are copied in the record, but under the decision, are not noticed more at length.

In the record also are copied all the accounts of Joseph Galt-ney, the co-executor, with the probate court, in which he is styled “ the executor of Abram Galtney; ” but it is not deemed requisite to set them out. They do not show a final settlement and discharge. The probate court ordered “ that Pearce Noland, surviving executor of said Abram Galtney, deceased, do render a final account of his actings and doings as executor as aforesaid ; ” and Noland appealed.

made the following points, viz:

1. Noland never took upon himself the execution of the will. On this point counsel reviewed the facts set out in the record.

2. He never had any of the assets of the estate as executor, and cannot therefore, be held to account for any.

3. The administrator. or executor of Joseph Galtney is th.e proper party to close his account as acting executor of A. Galt-ney. 2 Maine Rep. '81.

insisted,

1. That under the facts as shown in the record, Noland had acted as executor, and been recognized by the court as such, and had in legal contemplation jointly administered part of the estate, 'and was answerable for the proper application of all the property, with its income, therein contained. 1 Lomax on Exec. 379.

2. The fact that the property afterwards passed into the hands of his companion, and was administered by hiin, will not exonerate the appellant from reponsibility for waste and misapplication by Galtney. Story, Eq. Jur., ed. of 1846, § 1280 a ; Edmonds v. Crenshaw, 14 Pet.' 166.

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