Succession of Yarborough

Same Case — On a Re-hearing. Buchanan, J. In our former judgment, we overlooked the circumstance, that the plea of res judicata, (which we sustained as to Sizemore and wife, co-tutors of the minor heirs of Josiah J. Yarborough, and as to Elijah W. Yarborough.) barred their plea of prescription against the allowance of credit-to the administrator for payment of the notes of the deceased Stephen Yarborough, in favor of his son, William N. Xarborough. In this respect, our decree must be amended. It is, therefore, adjudged and decreed, that our former decree in this case be set aside and avoided. And it is now ordered, adjudged and decreed, that the judgment of the District Court upon the account of administration herein, be amended, by allowing the administrator, L. S. Yarborough, a credit in account for the sum of two thousand four hundred and forty-six dollars and ninety-four cents, for interest on sums that have been paid out by him, as an offset, pro tanto, of the interest which he is condemned to pay, by the judgment appealed from, upon sums that have como into his hands; that the opposition of Sizemore and *263 wife, co-tutors of the heirs of Josiah Yarborough; and that of E. W. Yarborough in his own right, and as representing the heirs of Claiborne Yarborough to the payments made by the administrator on account of four notes of the deceased Stephen Yarborough held by- Green, tutor of the minor heirs of William N.-Yarborough, be overruled and dismissed ; and the said payments are hereby allowed as a credit, in account, to the administrator; that in other respects the judgment of the District Court, as regards the appellant, L. S. Yarborough, administrator, be affirmed. And it is further decreed, that, as regards the appellants, Byrne, Vanoe <& Co., the judgment appealed from be reversed ; and that the said Byrne, Vance <& Co. recover of tire administrator of Stephen Yarborough, to be paid in course of administration, three thousand and thirteen dollars and ninety-three cents, with legal interest, as follows : On $417 70, from August 27th, 1852, to 23d November, 1852 ; On @1,315 77, from 23d November, 1852, to 6th January, 1853; On $4,415 77, from January 6th, 1853, to January 31st, 1853; On $6,865 77, from January 31st, 1853, to February 7th, 1853 ; On $8,823 86, from February 7th, 1853, to March 4th, 1853; On $6,955 80, from March 4th, 1853, to September loth, 1853; On $6,972 80, from 15th September, 1853, to July 7th, 1854; On $5,972 80, from July 7th, 1854, to April 30th, 1855 ; And on $3,013 93, from 30th April, 1855, until paid ; That the account of administration, as amended by the present decree, be homol-ogated, and made the judgment of the Court; and that the costs of appeal be paid by the succession. Merrick, O. J., being a creditor upon the tableau, recused himself. Land, J., absent, concurring.