Macmillan

These are two appeals, prosecuted on the same record, from separate portions of an order which settles the final account of the administrator of the estate of Herbert R. Macmillan, deceased, and decrees distribution of the estate. The appeal of Gordon Macmillan, one of the four heirs of decedent, attacks the portion of the order which, in effect, "distributes the entire estate in equal shares to the three heirs other than Gordon. The appeal of R. S. Macmillan, administrator, attacks the portion of the order which surcharges the account of the administrator in the sum of $12,956.99.

The problems presented by each appeal are independent of those raised by the other. We have concluded that each appellant has shown that the portion of the order which he attacks is erroneous and that such order, in the portions appealed from, should be reversed.

The determination that Gordon is entitled to no distribution of assets results from the erroneous conclusions (a) that the administrator should not have used income from an interest in certain property (an oil lease which, at least in part, was held in trust by Gordon, the beneficial interest being duly inventoried in the estate) to pay debts…