Field v. Hitchcock ( 1833 )

Shaw C. J.

delivered the opinion of the Court. On an appeal from a decree of the judge of probate, the question is, whether the settlement of a former account by an executor can be pleaded as a final account, so as to secure him from rendering a further account when cited for that purpose, and not only preclude the probate court from any further adjudication, but from all further inquiry. The Court are of opinion, that it was not competent for the probate court to decide that any account of the executor was final, so as to bar all further inquiry in' regard to matters not included in the accounts already settled, and to oust the probate court of its jurisdiction. An account is not in its nature final, whilst the executor continues to hold his office, because he may continue to receive and collect assets of the estate, many years after the settlement has been apparently closed. Instances of this have recently occurred, where administrators have received amounts allowed under treaties of foreign governments, making indemnity tor long antiquated claims. And further, a knowledge of facts may come to parties interested, tending to charge an executor, after he has settled an account, but which account has not embraced the subject matter of such charge. It was said in argument, as a reason why the executor should not be held further to answer, that he had accounted for all the property embraced in the inventory. This reason is plainly insufficient, because an executor is not only held by the duty of the office, nut by the express terms of his bond, to account as well for property not embraced in the inventory, as for that which is. And, indeed, the very reason why he may be called at a late period ¿o account, may be, that properly has come to his hands which ought to be accounted for, but which did not come to the knowledge of the parties interested, because the executor failed in his duty, in not putting it into the inventory.

It was further insisted, and authorities were cited to support the position, that nothing but fraud will justify opening a final account, and that such fraud must be specifically charged. But a final account, in the sense in which it is thus used, is an account embracing the subject, which has been passed and allowed by a final decree of a probate court, of original or appellate jurisdiction. It is the adjudication, which gives to the account the character of a final account.

One of the principal arguments relied upon for the appellee is, that if an executor cannot thus shield himself, he may be liable to be called on toties quoties, and can never have a final settlement. But, by the rule suggested, an executor is not liable to be called to account a second time for the same matter, and if he would protect himself from future liability, he should re quire the party calling for an account, to specify particularly the subjects as to which he requires the executor to account, by examination on oath or otherwise, and then having accounted, the whole would appear by the decree remaining on the records of the court for his protection. Then, if called on again, by the same or another party, such decree upon the specific subjects, would be conclusive as res judicata, unless fraud were charged and proved.

Decree reversed, and the case remitted to the prohate court for further proceedings.