Davis's Appeal from Probate , 39 Conn. 395 ( 1872 )

PARK, J.

We agree with the counsel for the appellant, that in cases of insolvent estates, when the court of probate has once exercised its discretion by limiting a time for the exhibition of claims against the estate and that time has expired, its discretion should be no longer exercised upon that subject without good cause being shown to the court why the time of limitation should be extended. This question was so decided in Leming's Appeal from Probate, 34 Conn., 201, and in Lockwood v. Reynolds, 16 Conn., 303. Whether the court of probate acted in accordance with this rule in extending the time for the exhibition of claims against this estate, is the principal question we are called upon to determine.

The record discloses that the appellees through their counsel appeared before the court and declared that they were creditors of the estate of Evan Davis, and that they had never received any notice from the commissioners on the estate as required by law and that no such notice had ever been sent to them. The record then proceeds as follows : “ The counsel for the alleged creditors and for the estate having been fully heard, this court finds that no notice was sent to the alleged creditors by the commissioners as required by law.” It is comprehended in this finding that the court was fully satisfied that the appellees were not only creditors of the estate, but known creditors, for the law only requires that notice shall be sent to creditors residing without the probate district, who are known to be such. “ No notice was sent as required by law,” is the language of the finding. But if this is not conclusive on the subject, we are satisfied that the expi’ession, “ to all known creditors oí the estate,” means known to those who have charge of the estate ; those who are called upon to administer its affairs and have the custody of its books and papers ; those whose duty it is to inform themselves regarding all the debts and credits of the estate, and have the means ot knowledge on the subject in their possession ; and not merely known to the commissioners, who ordinarily possess, and who naturally would possess, but little knowledge regarding the affairs of the estate.

Again, this expression, “ to all known creditors,” does not mean that the creditors must be known to be so in fact before they are entitled to the notice required by law. Such knowledge oftentimes cannot be possessed by triers even after the fullest hearing has been had on the subject. The statute must have a reasonable construction, and not one which will defeat the object of its enactment. We think the expression includes all persons who claim to be creditors of the estate, where the fact is known to the executors or administrators, or to the commissioners. Such persons are entitled to their day in court, and have the right to be heard, whether they are creditors in fact or not. The construction claimed by the appellant would prejudge their cause without a hearing, when the statute provides a tribunal to determine the case upon its merits.

It is further claimed that there was error in the proceedings because the court of probate did not re-appoint tbe commissioners or renew their powers when the court extended the time for the presentation of claims against the estate.

This claim is based upon the theory that the commissioners have no jurisdiction over claims presented during the extended time, on the ground that their appointment is confined to claims presented during the first limitation of the court for the presentation of claims. But on what law or reason this claim is founded it is difficult to conceive.' The appellant concedes that courts of probate have the power to extend the time for the presentation of claims in all- cases, provided good cause is shown for so doing. When, therefore, commissioners are appointed such contingency is taken into consideration, and they are appointed as much to supply the need during the extended time, should the time be extended, as they are during the first limitation of the court. Suppose the time is extended before the first limitation expires ; will the appellant contend that a new appointment of the commissioners 'will be necessary to give them jurisdiction over claims that may be presented during the extended time ?. And does it make any difference at what time the extension is made, whether before or after the first limitation expires ? If it be said that the commissioners in this case had made their report, and that it had been accepted, before the extension was made, the answer is, that this was done under the mistaken apprehension that their duties were ended; but when the time was. afterwards extended the whole matter was opened again.

We think the commissioners were appointed to hear all claims presented by creditors during whatever period such claims might lawfully be presented.

The remaining questions made by the .appellant are not included in the reasons of appeal, and we therefore do not consider them.

The conclusion therefore is, that inasmuch as the appellant knew that the appellees claimed to be creditors of this estate, and that they resided without 'the probate district, it was his duty so to have informed the commissioners that the notice provided by law might be sent to them. This was not done, and we think it furnishes sufficient cause for the extension of the time first allotted by the court in order that the appellees might have an opportunity to present and prove their claims.

We have considered and decided this case upon the facts as they appear upon the record of the court of probate. In doing so we do not wish it to be understood that we might not have considered the case upon the facts as they appear in the finding of the court below, for in all probate appeals the appellate court takes the place of the court of probate, and tries the cause de novo so far as the special matter appealed from is concerned, and if the ap-. pellate court shall find .that good cause did in fact exist for the extension of the time of limitation by the court of probate, the court will affirm or reverse the judgment of that court, as the case may be, whether the record of the court of probate shows good cause for the extension of the time of limitation or not.

The Superior Court is advised to affirm the decree of the court of probate.

In this opinioii the other judges concurred.