When an executor returns an account of sales in which he sets forth, besides the property, the amount of sales whereof is stated, several lots of corn, cotton, etc., as being sold at the same time, with the prices per bushel or pound stated, but without giving the quantity of any one of them, or carrying out their amount in money, a commissioner, in taking an account of the estate, cannot reject these articles, but should call upon the executor, upon whom the burden of proof is thrown in such cases, for explanation in regard to them; and, if none be afforded, should charge him with an amount making the assets at least equal to the disbursements.
GASTON, J., having stated the case:
The Court is of opinion that the exceptions are to be allowed and the report set aside. This evidence threw the burden of explanation on the executor, and those who claim through him, the alleged creditor of the real estate. If no explanation were given, the commissioner ought to have inferred that the assets were at least equal to his disbursements. As the mistake of the commissioner may have prevented explanations which otherwise might and would have been rendered the court, while it sets aside the report, recommits the cause for making the inquiries heretofore ordered. (289)
PER CURIAM. Recommitted.