HAMILTON, Adm'r, vs. GWYNN AND WIFE

HAMILTON, Adm’r, vs. GWYNN AND WIFE. 1. A writ of error does not lie from a decree of the Court of Probate, purporting to have been rendered on the final settlement of an estate, and reciting that the administrator “moved the court to be discharged on the grounds of payment and delivery of the property in his hands to the heirs; which motion being argued by counsel on both sides, and due deliberation had thereon by the court, it is considered by the court that the testimony is not sufficient to discharge the adminstrator.’-' Error to the Court of Probate of Clarke. The plaintiff in error was cited by the defendants to make final settlement of his administration on the estate of Linda Hamilton, -deceased. After several continuances, a decree was rendered, which is entitled “ In the matter of the estate of Linda Hamilton, deceased,” and is as follows : “ This being the day to which the final settlement of the estate of Linda Hamilton, deceased, was postponed, the cause came up for hearing; and the said administrator, having previously filed his account current for final settlement, now moves the court to be discharged, on the grounds of payment and delivery of the property and negroes in his hands belonging to said estate to the heirs;” the decree then sets out the testimony adduced on the motion, and concludes thus : “which motion being argued by counsel on both sides, and due deliberation had thereon by the court, it is considered by the court that the testimony is not sufficient to discharge the said administrator ; to which ruling of the court the administrator excepts,” &c. A motion is now made to dismiss the writ of error. F. S. Blount, for the motion. [MAJORITY — CHILTON, C. J.] CHILTON, C. J. In this case, a motion is submitted to dismiss the writ of error, for the reason that the record shows that no final judgment was rendered in the cause. Upon an examination of the record, we are satisfied that the motion should be allowed. The Probate Court refused to discharge the administrator on his motion ; but there is no decree against him, and no final settlement of the estate has been made. If, on the final settlement, a judgment or decree shall be rendered against the administrator, for assets which he has duly paid or delivered over to the distributees by their agreement or consent, it will be time enough then for him to complain : until some judgment or decree is rendered against him, he is not injured, and cannot maintain a writ of error. Let the writ of error be dismissed.