Hubbard v. Hinkley , 1 Root 413 ( 1792 )

The court gave the following judgment, viz. In this case the court find that the judge of probate did not malee the said Jared account for the rents and profits of the real estate of said Charles, from the time of his accepting the office- and trust of executor aforesaid, and while said estate was in the hands and possession of the heirs of said Charles, until it was represented insolvent; and that the judge of probate did allow the said Jared £158 12s. lOd. lawful money for moneys by him expended and services done as administrator on the estate of said Charles in the two districts of Hartford and Thetford, both in the state of Vermont, out of the jurisdiction of this state, which estate of said' Charles consisted of lands; that said Jared took two letters of administration, one from the court in each district, and sold the real estate of said Charles lying in said state of Vermont according to the laws of that state, for the sum of £65 6s. only, and said Jared’s administration account aforesaid exceeded the sum said real estate was sold for the sum of £93 6s. 10d., and the same was allowed to him in his account as executor, in the settlement of said estate.

And the court further find that the Court of Probate did allow to the said Jared in, the whole, the sum of £464 6s. lid., including said sum of £93 6s. 10d., the balance of his administrator account in the state of Vermont — Which facts the court find are tine:- But on consideration thereof are of opinion that they are insufficient reasons for which to set aside the said orders and judgment of said Court of Probate.

And as to all the rest and remainder of the facts set up and alleged in the reasons of the appellants exhibited to this court, they are not supported by evidence and the court find them not to be true. It is thereupon considered that the? doings, orders and judgments of the Court of Probate be and they are hereby affirmed.

Prom this determination of the court with respect to allowing the administration account for the sale of lands in the state of Vermont, Judge Adams dissented; and Root having heretofore been attorney in the cause excused himself from judging.

The judgment of the Superior Court was reversed upon a writ of error, in the Supreme Court of Errors, in May, A. D. 1793, for the following reasons, viz:

First —■ The act of allowing an administration account is the proper official act of the judge of probate, or other officer who grants administration; the administrator is related to the judge as his agent, minister or substitute, to transact the business committed to him under his immediate inspection on account of that relation. The judge is every way qualified to decide with integrity and justice on his accounts, but the judge of probate bas no authority as judge to allow the accounts of any other person whatever against the estate of a deceased person. , , ,

The administrator in the present case, is a stranger to the judge of probate for the district of Windham; nor has the judge any power to inspect, order or control the said administrator as his minister or agent, but he is accountable to the judges that appointed him, and they alone have authority to allow his accounts. The administration being committed to the executor in this case mates no difference, for the trusts are as perfectly distinct as if they had been placed in different persons, and consequently the accounts of Jared Hinldy as administrator, cannot be considered nor treated as the accounts of Jared Hinldy as executor, in which character alone is he related to the judge of probate for Windham district.

It will be admitted that if one administrator can charge another administrator, or an executor on the same estate in a different jurisdiction, with any part of his administration account being allowed by the judge who appointed him, then such executor or administrator so charged, might voluntarily take such charge upon himself; or in the present case, Jared Hinkly as executor in the jurisdiction of Connecticut might take upon himself the charge of Jared Hinkly as administrator in the jurisdiction of Vermont, and the judge of probate for the district of Windham might in that case allow the same to the executor’s credit, but the principle that such a charge can be supported cannot be admitted. Eor such administrator or such executor and administrator in different jurisdictions, if they can be created by law, and can exist at the same time, are wholly independent of each other, nor is there any privity between them, that can create a liability in the one to the other: Nor is there either precedent, or example, that can be produced, it is believed, in proof of the point that one representative of a deceased person can maintain an action against another co-existing representative of the same deceased person.

The question relating to the power of executors and administrators, is so important, as it respects the execution of their trust, and the community, that it ought to be clearly defined and understood.

As I did not judge in this case, I think that from the law and the reasonings of the court upon it, it is clear, that the several Courts of'Probate in this state are invested with complete jurisdiction, within their respective districts; of the probate of wills, of granting letters of administration, of appointing guardians to minors, of inventorying and making distribution of the estates of deceased persons who lived and died within their respective districts. That the probate of wills or letters of administration, under the seal of the Court of Probate, are a sufficient authority for the executor or administrator to collect the debts and to dispose of the personal estate of the deceased, throughout this state, and the United States; and what they receive is to be added to the inventory, and an account thereof rendered to the Court of Probate under whose authority they act, to be settled by him. They have also authority to sell real estate, lying at any place within this state, if necessary, by the order of the Court of Probate.

Real property lying in another state or jurisdiction must be proceeded with and disposed of by authority from, and according to the laws of the state or jurisdiction, in which such estate lies. If the estate is solvent, the executor or administrator will have very little to do with it, as they cannot sell it, the heirs or devisees will look after it. If the estate is insolvent, then it becomes the interest of the creditors, that it should be sold for the payment of the debts; and it may be a question of prudence, upon which the creditors ought to be consulted, whether the estate will answer the cost of going after it, of taking out letters of administration, and going through the forms of law in another state for the purpose of selling it and turning it into money.

As the executor or administrator is a mere trustee for the creditors, this ought not to be at his risk and expense, provided he conducts with discretion, but of the creditors for whose benefit they act. The administrator, appointed by the court must make bis return to the court that appointed him, and settle bis administration account there; who will allow out of the avails of the estate what he shall judge to be reasonable for his trouble and expense; and the net proceeds of the estatp paid and delivered over into the hands of the original executor or administrator as so much personal' estate, which it is their duty to add to the inventory, on which the average shall be made out to the creditors.