Davis v. Cowdin , 37 Mass. 510 ( 1838 )

Shaw C. J.

delivered the opinion of the Court. The petitioners have filed their petition in the Probate Court, for a re-hearing of the subject of a decree made twenty years ago. It is certainly an extraordinary case, and in general such a lapse of time would be decisive against the opening of an administration account.

This is an application for the extraordinary interposition of the authority of the Supreme Court of Probate, and must be determined upon a full consideration of all the circumstances of the case, upon equitable grounds. It is a claim to open the account on the ground of fraud, and as such is within the jurisdiction of the Court. Jennison v. Hapgood, 7 Pick. 1 ; Field v. Hitchcock, 14 Pick. 405.

In the first place, it is apparent, that upon a full hearing m the Probate Court in 1825, the petitioners obtained a decree, charging the administrator with $109-64, and that on the ground of having charged in his account, moneys that he had not paid. By claiming no appeal, the administrator submitted to this decree, and but for the appeal of the other party, would have been bound by it. This affords strong prima facie evidence that that sum was justly due to the petitioners.

It is also highly probable from the circumstances, that the petitioners, having appealed to obtain a larger sum, when they abandoned that appeal, did it under a mistaken belief, that as the other party had not appealed, when they relinquished then-appeal, the decree appealed from would remain in force without an affirmance by the court appealed to, and that they might 'egallv obtain the amount of that decree, upon demand.

There is another view, having a strong bearing upon the equities of this case. Ordinarily, the strong and often a decisive objection to opening an old and long settled account is, because it would disturb and unsettle fixed rights and relations, where parties cannot be placed in statu quo. But in this case, the claim is made by a residuary legatee, who alone is entitled to any balance in the administrator’s hands. If he has failed to account and pay over, according to his duty, the sum retained enures to his own use ; no other legatees or distributees have received it, or can make claim to it. It is a case, in which the petitioners and the respondent are alone, directly and adversely interested.

Then, what is the real objection to opening the account ? It is this ; that from the lapse of time, and the consequent probable loss of vouchers and other evidence, the administrator, if now called to settle an account, would do it under great disadvantages. This is an objection of great weight, and under many circumstances ought to be decisive.

But in the present case, it cannot be said that the petitioners have lulled the administrator into security, by their laches or acquiescence. They have been prosecuting this claim in various forms, almost the whole twenty years.

Under all the circumstances of the case, the Court have come to this conclusion, that the petitioners have a strong equitable claim to the benefit of the decree of 1825 ; and that the abandonment of their appeal, and the demand made for the balance due by that decree, was notice to the administrator, that the petitioners were content to abide by that decree, and accept the sum due upon it ; and no reason is given why it should not be paid. If the respondent will now pay the balance due by the decree of 1825, with interest thereon from the time of the demand, with costs, then this petition will be dismissed. Otherwise the prayer of the petition will be granted.