Lawrence's Appeal from Probate , 49 Conn. 411 ( 1881 )

Pardee, J.

The appellant insists that the right of the probate court in this state to appoint a .creditor as administrator with the will annexed, depended upon two facts— first, the refusal of the executor to accept; second, after such refusal, the citation of the widow and next of kin of the deceased, and their refusal, neglect of appearance, or incapacity to act; and cites the statute, which is in these words: “Upon the refusal of an executor to accept the trust or give a bond, the court shall commit administration of the estate with the will annexed to the widow or next of kin of the deceased, and may cite them to appear before it, and upon their refusal, or neglect of appearance, or incapacity, may grant the administration to one of the principal creditors, or on their refusal to such- other person as the court shall think fit.” Revision of 1875, p. 871, sec. 12. She denies that she has either refused or renounced executor-ship, and says that no citation was ordered either to herself or to the next of kin.

But this is a rule for the guidance of the probate court in confiding administration upon the estates of deceased residents, and does not govern the case before us. This view is not only reasonable in itself, in consideration of the special interest of creditors in the estate of a non-resident decedent, making it the duty of the court to place their rights before those of mere kindred, but is supported by the fact that precisely this distinction is made by the statute with regard to intestate estates. This statute (Revision of 1875, p. 372, sec. 1,) provides that “when any person shall die intestate, the court of probate in the district in which the deceased last dwelt, shall grant administration of his estate to his widow, or next of kin, or to both, or, on their refusal or incapacity, to some other person, as said court shall judge fit; and when a person living out of the state shall die intestate, leaving property within the state, administration may be granted in any district where the estate or some part thereof shall be, to such person as the court shall see fit.” Where, in the case of a testate nonresident, the executor neglects or refuses to act in this state, there is no reason why the appointment of the administrator with the will annexed should not be left wholly to the discretion of the judge of probate as much as the appointment of the administrator in the case of a nonresident intestate.

Upon the death of a testate non-resident, leaving sufficient estate in the state of residence to satisfy the claims of all creditors, and real estate and creditors in this state, the probate court would, as a matter of course, concede to the appellant, being executrix in the state of residence, the privilege before all others of proving the will and applying the estate here to the payment of claims here ; and would not bar her from that privilege unless well satisfied that she had intentionally renounced it. If upon due presentment to her in the state of residence she refuses to pay these, pays all other claims, divides the remaining estate among heirs, taking there for that purpose the rents and profits of the restate here, and omits during eight years to prove the will, or give any opportunity here to these creditors to appropriate the estate through her in her representative capacity, the probate court may well find an intentional refusal by her to execute the will in this state; for such refusal need not be express or formal; need not be by word or in writing; the court called upon to determine its existence may find it in silence and inaction. Ayres v. Weed, 16 Conn., 291; Solomon v. Wixon, 27 Conn., 520. And the court having knowledge that there are creditors here and that the person whose privilege and duty it is to appear and administer the estate here for their benefit has neglected and refused so to do, these creditors then, in the consideration of that court, supplant the foreign heirs, and become the primary objects of its concern. Thenceforth it is the duty of the court to assist them in obtaining payment of their claims from the estate here, that they may be saved the loss of time and money consequent upon efforts to enforce payment in a foreign jurisdiction. For debts due to citizens of the state where auxiliary administration exists are upon their request to be paid by that administration before any portion of the estate shall be allowed to pass out of that jurisdiction. Williams on Executors, 1664, and notes.

And neither the duty of the court to assist them, nor their right to its assistance in that behalf, depends upon any precedent notice to foreign representatives or heirs. If these value and desire to preserve to themselves the privilege of appropriating the estate here to creditors here, it is upon them to ask for and secure it; but if they ask only after eight years’ delay, and after administration has by the probate court in the exercise of its discretion been confided to and completed by creditors, they ask too late.

Again, the appellant cites the statute, Revision of 1875, p. 372, sec. 3, which provides that “administration upon the estate of any person shall not be granted after seven years from his decease.” But the statute also provides (sec. 2, p. 369,) that “ all wills executed according to the laws of the state or country where they were executed may be admitted to probate in this state, and shall be effectual to pass any of the estate of the testator situated in this state;” and (sec. 10, p. 370,) that “if the testator at his decease lived out of this state, the will may be proved in any district in which the estate conveyed or some part of it may be,” and (sec. 11, p. 371,) that “ no will shall be proved after ten years from the death of the testator.”

The limitation of seven years in the first citation is applicable only to intestate estates. The law intends to allow a testator, resident or foreign, to speak by his will at any time during ten years from his decease concerning the disposition of his estate in this state; and the will of Mr. Lawrence completely governs the disposition of his estate here, although executed through the instrumentality of an auxiliary administrator. The will is his law as entirely as if he had been appointed at the place of residence upon the renunciation of all having precedent right to execute and had brought it into this state and presented it for probate; and the right so to do would have been open to him under our statute, even if he had come to his office only after the lapse of eight years from the death of the testator. The existence of a will gave creditors here the benefit of a longer time in which to appropriate the estate here to the payment of their claims; an advantage of which they are not to be deprived because of a renunciation by all named executors. And the will having been proven here, whether by the executor or the auxiliary administrator, is proven for all purposes legally possible. Alike in the forum of the principal executorship and in this of the administration with the will annexed, creditors take precedence of heirs; and there is not in either forum execution or administration for the exclusive benefit of the latter.

It is claimed also that inasmuch as the estate was largely solvent, the representation by the administrator with the will annexed to the contrary did not bring it within the operation of the statute, (Revision of 1875, p. 375, sec. 1,) which provides that “the estate of any deceased person may be settled as an insolvent estate if the court deem it expedient; ” that as there is no finding by the court as to such expediency it had no power to appoint commissioners; that there should have been a special notice to the appellant, a non-resident, of the time of making such appointment; and that the notice was insufficient even for residents. But the language of the statute is all inclusive— “ the estate of any deceased person may be settled as an insolvent estate; ” and the practice of thus settling estates upon the theory that the representatives of the deceased are at the outset unable to determine its condition with certainty, has long existed and has often received the implied approval of the courts. The determination of the probate court that it was expedient thus to settle the estate in question, is to be found in its various orders and decrees that it should be so done.

In reference to' the matter of notice, the statute (Session Laws of 1878, p. 354, see. 1,) requires that “the court of probate shall direct the executor" or administrator on every estate of a deceased person which shall be represented insolvent, * * to cite, by advertising in a newspaper published in the district wherein the estate is in settlement, * * all persons in interest to appear if they see cause before said court at the time and place appointed by said court and designated in the notice, to be heard relative to the appointment of commissioners to receive and decide upon the claims of creditors to said estate.” In the decree of March 29th, 1880, the court ordered the appointment of commissioners on April 5th, 1880, stating time and place, and directed the “ administrator with the will annexed to cite, by advertising in a newspaper published in the probate district of New Haven, all persons interested to appear at said time and place, and be heard relative to said appointment, and return make to this court of the notice given.” This -order is in full compliance with the statute, and it is found by the probate court to have been obeyed.

Again, the appellant insists that the presentment by the creditors in this state of their claims to the executors in New York, and their omission upon rejection to enforce payment in the courts of that state, worked an extinguishment of their right to the interposition of our courts in their behalf. We cannot accede to this. It was their right to ask for payment at the place of principal executorship; upon denial it was their right to enforce it through the more convenient process of auxiliary administration in this state.

Again, the appellant claims that, if the estate was in fact insolvent, she was entitled to dower in the real estate in New Haven, under the statute (Revision of 1875, p. 375, sec. 4,) which provides that “ if on the report of commissioners the estate shall appear to be insolvent, the court shall set out to the widow her dower.” But by the will she had the privilege of taking the use and income of one third of the entire estate in lieu and bar of dower, and she determined to avail herself of it. Presumably she has long received and is now receiving the income of a principal set apart for her use, equal in amount to one third part of an estate of which the land in New Haven was inventoried as a part. It is not found that that piece of land constitutes a portion of that principal thus set apart, or that it is subject to any use in her behalf, or that she has any present interest in it. And in Lord v. Lord, 23 Conn., 327,. it is said of a widow taking a legacy in lieu of dower, that “ she is considered in the light of a purchaser; not taking her legacy as a gratuity, but as an equivalent for what she relinquishes ; were it not so she might lose all her interest in the estate, for having relinquished her dower she cannot return to it afterwards and claim her former right, certainly not without great difficulty and embarrassment to the estate.” The appellant is therefore now in no better condition to assert a claim against the land in New Haven than is any other legatee who has received his legacy in full from the executor in the state of residence.

Again, it is objected that the allowance by the commissioners as a preferred claim against the estate in New Haven of a tax assessed against it on the list of 1878 was illegal. The statute (Revision of 1875, p. 158, sec. 26,) provides that the estate of any deceased person not distributed or finally disposed of by the court of probate, “ may be set in the list in the name of such estate or of the administrator or executor thereof, as such, and such property shall be liable for all taxes legally imposed thereon, for one year from the time when they become due.” And section 15, (p. 163,) provides that “ real estate, owned by any person, shall stand charged with his lawful taxes in preference to any other lien.” Moreover, the remedy of the appellant was by appeal from the doings of the commissioners and not from the decree of the court. In Moss’s Appeal from, Probate, 36 Conn., 212, the court said: “The action of commissioners on an insolvent estate in allowing or rejecting claims presented against the estate, cannot be reviewed upon an appeal from the decree of the probate court accepting the commissioners’ report, but only on an appeal taken directly from the doings of the commissioners.” We think the objection not well taken.

Again, it is claimed to have been the duty of the probate court upon the exhibition of his account by the administrator for allowance, to appoint a time and place for hearing the same, and to direct a citation to all persons interested; and that the account is improperly drawn up, in that it credits itself with the amount of the claim allowed, as if paid, when no part thereof had then in fact been paid.

On October 25th, 1880, the probate court ordered the administrator to give public notice and to cite all persons interested to appear, by an advertisement in a newspaper published in New Haven County, and by posting a notice upon the public sign post in New Haven, that he would exhibit his account for adjustment and allowance at the probate court at two o’clock in the afternoon of the 29th day of that month; and the court on the last-named day found that such advertisement was published in a news, paper printed in New Haven, called the “Journal and Courier,” and that such notice was posted on the sign post nearest to where the property is situated, in New Haven, all in accordance with the order. We have not in mind, and have not been pointed to, any statute requiring more than was done in this instance.

It is true that the administrator in form credits himself with this entry: “ By general claims allowed by commissioners— $20,161.13;” but inasmuch as he immediately asks for leave to sell real estate for the payment thereof, it is to be taken as a method of informing the court as to the amount to be raised by such sale, rather than as an intentionally false assertion of actual payment.

Again, it is said that the probate court should not have granted the order for the sale of real estate, for the reason that the creditors whose claims had been allowed had forfeited their right to such an order from the court by reason of their long delay in presenting their claims. But the testator having left real estate in this state, his creditors here had the right to have it applied by his representative to the payment of their claims, and were never under any legal obligation to present them in the foreign forum of principal executorship. It was also their right to presume that the executor would voluntarily come into this jurisdiction, prove the will, give, them the opportunity here to present their claims, and if approved to receive payment from the estate here; and, upon this presumption, if they were willing to assume the risk of embarrassment in securing their rights because of intervening rights in others, they might in such waiting exhaust nearly the entire statutory limitation for proving the will here without subjecting themselves to a forfeiture of rights by laches.

It is said, too, by the appellant, that there was no necessity for the order of sale of real estate, for the reason that in the place of principal executorship there was sufficient personal property for the payment of all'claims against the estate; and, that if such necessity had existed, the order did not comply with the statute requirement in that it did not specify whether the sale should be public or private; that it did not comply with the statute (Gen. Statutes, p. 395, see. 42,) by ordering notice of the sale to be published in a daily newspaper circulating in New Haven; and that the sale was not made subject to the appellant’s right of dower in the land. But, as we have said, it was the right of creditors here to ask the aid of the probate court in applying the real estate here to the payment of their claims through the instrumentality of an auxiliary administration ; through that to apply and exhaust it in manner and form rendered necessary by the fact that the only asset here was land, and that of insufficient value to pay their entire claim.

In Griswold v. Bigelow, 6 Conn., 265, Hosmer, C. J., says : “ I will dispose of one suggestion of a general nature made in the course of the argument. It was supposed that the order of sale by the court of probate is discretionary, and to this -end were cited two determinations in a neighboring state, Ex parte Allen, 15 Mass. R., 58, and Thompson v. Brown, 16 Mass. R., 172. These decisions are, I think, misconceived. It never can be admitted that a probate judge, on principles of unlimited discretion, may refuse to exercise this branch of Ms jurisdiction. * * But if the discretion were absoMte the proceedings of the court of probate must be irreversible, as no error is predicable of a decision made on tMs unlimited principle.”

Assuming that the statute law required the publication of notice of such sale of real estate in a daily newspaper printed in the county and circulating in the town of New Haven, and that the order of the court only required the publication in a newspaper published in the county, yet inasmuch as it is found that such notice was in fact inserted in a daily newspaper published in the town and circulating in the district of New Haven, we think that the full compliance with the law must have its effect, even if there be the claimed defect in the order. The law looks in such matters to the substance.

The statute (Revision of 1875, p. 894, sec. 36,) provides that “ when debts * * exceed the value of the personal estate, said court may order the sale of so much of the real estate as may be sufficient to pay the same, * * in such manner as shall appear to said court to be most for the benefit of the estate.” In the case before us the court ordered the administrator to sell the land “ either at public auction or private sale, as should be deemed to the best advantage, &c.” The sale was made at public auction, after an advertisement thereof in a daily newspaper, published and circulating in New Haven, and, as a sale of property at public auction after due notice is the legal synonym for a fair and advantageous sale, we think the sale should be regarded as legal without reference to the question whether the order was open to objection by reason of its alternative character. That question it is therefore unnecessary for us to consider.

There is no error in the judgment complained of.

In this opinion the other judges concurred.