Tuttle v. Robinson , 33 N.H. 104 ( 1856 )

Fowler, J.

The first question suggested by the arguments of counsel, l'elates to the admission of the appellant as a witness in chief by the auditor. It was in the discretion of the auditor to admit him or not, and we see no reason why the discretion was not properly exercised. The appellant was not permitted to testify in regard & his private claim, arising before the death of the intestate, in regard to which there might bo supposed to have been some injustice in allowing him to testify. That claim was rejected by the auditor, as not properly before him. As to matters arising after the death of Thomas Tuttle, especially all transactions relating to articles not inventoried, with which the appellant had been charged, we perceive no stronger objection to receiving his testimony, than exists to the testimony of any other party in any other case. It does not appear but that every person conversant with the matters about which he testified, was alive and within reach of process.

It is the general practice in this State for auditors to receive the testimony of either party to a suit, and the court will not interfere with a report because one of the parties has been permitted to testify, unless it is perfectly clear that injustice has been done. Hoyt v. French & a., 4 Foster 202; Stevens v. Hall, 6 N. H. 508; Mann v. Loche & a., 11 N. H. 246.

There can be no doubt the appellant was properly permitted to refresh his memory by looking at the memorandum. Although a witness can testify only to such facts as are within his own knowledge and recollection, yet he is permitted to refresh and assist his memory by the use of a written instrument, memorandum, or entry in a hook. It is not necessary that the memorandum should have been made by the witness, if he saw it made and knew it to be correct at the time, in order to render the memorandum itself competent evidence for the jury. 1 Greenleafs Ev., secs. 436, 437, and notes; Haven v. Wendell, 11 N. H. 112; Watson v. Walker, 8 Foster 471; Webster & als. v. Clarke, 10 Foster 245.

The insurance company, having made assessments upon the premium note for losses occurring subsequently to the death of Thomas Tuttle, were undoubtedly estopped to deny the validity of the insurance after that event. They recognized the contract as subsisting, by making assessments for losses, for which, if the policy were vacated, the personal representative was in no way liable, as only members of the company were liable for their portion of losses. The company having made such assessments, and the administrator having paid them, whether there was or was not any application for or previous assent by the administrator to the continuance of the insurance, there would seem to be no doubt that the buildings continued to be insured during the term of the policy, and that the administrator should be allowed whatever he paid as assessments for losses happening after the death of the intestate, on the ground that it was his duty to preserve the property while in his care. Burbank v. Rockingham, Ins. Co., 4 Foster 550.

But the administrator is entitled to be allowed for the whole amount of assessments paid by him on other and more satisfactory, and, as it seems to us,' entirely conclusive grounds.

By the 7th section of the charter of the Atlantic Mutual Fire Insurance Company, a copy of which makes part of the auditor’s report in this case, it is provided that “ all buddings, and the land upon which they stand, and the property insured therein, shall be held by such company as security for any deposit note which they may hold of the member for whom they have insured; and the policy of insurance to any member of said company upon his buildings or other property, shall of itself create a lien upon the same for the sum of any such deposit note and the cost which may accrue in collecting the same; and such lien shall continue during the existence of said policy and the liability of the assured therein, notwithstanding any transfer or álienation.”

This provision gave to the insurance company a valid lien upon the property of Thomas Tuttle for the payment of his proportion of the losses happening in his life-time, as well as those accruing after his death, during the continuance of the policy, to the amount of his deposit note. The existence and validity of such a lien has been often recognized by the courts in numerous decisions. Many of these may be found collected in Marshall v. Insurance Company, 7. Foster 157, 166, 167.

By the 11th section of the 159th chapter of the Revised Statutes, it is made the duty of the administrator, “ if there are sufficient assets, to redeem all property of the deceased under mortgage, pledge or levy of execution, for less than its value, or which, if unredeemed, would diminish the value of the estate, unless he shall by license sell the same subject to such incumbrance ; and the neglect so to redeem shall be deemed mal-administration and waste.”

By the 10th section of chapter 162, of the Revised Statutes, relating to insolvent estates, it is enacted that “ if any creditor holds collateral security for his debt, of less value than such debt, the commissioner shall estimate the value of such security, and allow him only the difference between such sum and his debt, and shall return with his report, and give to such creditor on request, a certificate of such estimate.” By the 11th section of said chapter it is provided, that if the creditor is dissatisfied with such estimate, and shall relinquish his interest in such security, and deliver up the same to the administrator, the property thus surrendered shall be sold by the administrator under the direction of the judge, and the proceeds paid to the creditor, and the difference between the sum so paid and the amount of his claim be inserted upon the list of claims, in place of the sum allowed by the commissioner.”

Now, if the security holden by a creditor is of greater value than his debt, the statute requires the administrator to pay the debt, under penalty of being adjudged guilty of mal-administration and waste for neglect so to do. Does the statute contemplate the presentation of claims of this character to a commissioner for allowance, and does the non-presentation of such claim, or the rejection of such claim, if presented, and no appeal taken, deprive the creditor of his security for the payment thereof? We think not.

By the 15th section of the 163d chapter of the Revised Statutes, it is enacted that “ all demands against any estate which might be presented to the commissioner, and were not so presented, and all demands so" presented and rejected, and not allowed upon appeal, shall be forever barredthus placing claims not presented, and those presented and rejected, and not allowed on appeal taken, in precisely the same position. Taking into consideration the other provisions of the statute to which we have referred, we have no doubt that when the provisions of this section are applied to debts secured by mortgage, pledge or lien, of greater value than the debts, it must be understood that such debts are not properly presentable to the commissioner, or that, if not presented, or if presented and rejected and no appeal taken, they are barred only so far as any right to the general funds belonging to the estate in the hands of the administrator for their payment is concerned. It is clear that the legislature could not have intended to declare that the non-presentation to a commissioner of a debt secured by mortgage or pledge to double its amount, should forever bar or discharge the lien of the creditor upon the property mortgaged or pledged for its security, for they have made it mal-administration in the administrator not to redeem such property by the payment of the debt. But claims not presented, are, by the terms of the statute, as much barred as those presented and rejected and not allowed upon appeal taken. It seems etpally clear that they could not have intended that the presentation of such debt to the commissioner, and its rejection by him and no appeal taken, should bar the right of the creditor to the security holden for its payment, for that would be to compel a creditor whose debt was fully secured to pursue his remedy against an insolvent estate without any possible object to be attained. It would be to deprive one whose whole debt had .been abundantly secured by the deceased in his life-time, of all benefit and advantage therefrom, without any cause, by a mere arbitrary enactment.

We can, therefore, come to no other conclusion than that debts fully secured by mortgage, pledge or lien, are not within the intent of this section of the statute, and are not affected by its provisions, so far as concerns the property mortgaged or pledged for their payment. The fact of their not having been presented to the commissioner, or of their having been presented and rejected and no appeal taken, in no way affects the validity of the lien upon that property.

The insurance company, then, having, notwithstanding the rejection of their claim by the commissioner, a valid claim on the buildings of Thomas Tuttle, and the land whereon they stood, for the payment of his proportion of all losses happening in his life-time, and subsequently, during the continuance of the policy, and that property being of greater value than the debts for whose payment it was pledged, it became the duty of the appellant, as his administrator, to redeem the property for the benefit of the estate, by the payment of those debts. Having paid them, he is clearly entitled to be allowed therefor in his administration account.

No notice having been given in the citation for the settlement of his account of administration, of the existence of a private claim of the administrator, as required by the statute, it was properly rejected both by the judge of probate and the auditor. No such claim can be allowed, unless notice of its character and amount has previously been given in the citation. Comp. Stat., chap. 171, sec. 16; Abbe v. Norcott, 8 N. H. 51.

In regard to the expense of fencing the burying place where the deceased and some of his relatives were interred; if those interested in the estate saw fit to object to its allowance, we are not aware of any law to justify it. The statute authorizes the administrators of estates actually solvent, to erect suitable monuments at the graves of their testators or intestates, (Comp. Stat., chap. 168, sec. 16,) but makes no provision for enclosing private burial grounds. As cemeteries are generally provided and properly fenced at the public expense, it may not have been deemed advisable, as a matter of policy, to encourage the establishment of private burial places.

The fourth reason of appeal having been abandoned before the auditor, and not renewed here, does not present itself for consideration.

In regard to the amounts allowed for the per diem and expenses of the administrator while attending probate court, uniformity is important, and ordinarily the judge of probate has a general rule on the subject; and it is to be presumed his allowances in any. given case are in conformity with such rule, until the contrary is shown. Judging from the facts disclosed in the auditor’s report, we infer that the practice in Strafford under the present judge of probate is to allow two dollars per day for attending court, without expenses; and if so, the appellant has no cause of complaint that he has not been allowed the ordinary compensation, for whenever he attended two consecutive days an additional allowance of one dollar seems to have been made him. Every estate is chargeable with the just expenses of the administration thereof, among which are the time and personal expenses of the administrator; but what, under all the circumstances, is a reasonable compensation for these at each term of the court when his attendance may be required, the judge of probate, from his position, knowing all the particulars of the service, would seem better qualified to decide than any other tribunal. In the present case, as the auditor before whom the appellant testified in chief, confirms his judgment, and there is nothing to impeach it, we are not disposed to reverse it.

Among the rejected items is a charge of “ one day at Dover, to file bond,” and we are satisfied this was properly disallowed, for no reason is shown why the bond might not as well have been forwarded by mail, as to have required the personal attendance of the appellant to deposit it in the register’s office.

The remarks already made in relation to compensation for the personal services of the administrator, apply with equal force to that of counsel. If an administrator finds it necessary to employ counsel in the probate court, he must be understood to do it, subject to the control and supervision of the tribunal whose duty it is to determine in the first instance what are the just expenses of administration, with, of course, a right to appeal from the decision. In the present instance all the services whose compensation is reduced were rendered before the probate court, and the fair presumption is, that, in the opinion of the judge, some portion of them was not needed, or did not answer any useful purpose to the estate. From the auditor’s report, they would seem not to have been very successful. From whatever cause they may have been originally reduced, as the auditor confirms the decision of the judge of probate, and we have nothing whereby we feel at liberty to overrule their decision, it must stand as correct. As to the two dollars paid by the appellant to avoid being sued on what he considered an unjust and unfounded claim, we think the interests of the community would not be promoted by the establishment of a precedent for levying contributions on the estates of deceased persons in that mode.

The size, location and manner of attachment to the chimney of the bar-room stove, as described in the auditor’s report, taken in connection with the fact that it had been annexed by the ancestor for the benefit of the inheritance, and was necessary to its enjoyment, seem to justify the auditor in discharging the appellant from its value, although the evidence before him only rendered it doubtful whether it could be removed without disturbing the brick work.

In Kittredge v. Woods, 3 N. H. 504, it is said by the court, “it seems to be settled, that, in general, whatever has been in any way annexed to the freehold, for the benefit of the inheritance, and is necessary for its enjoyment, shall go to the heir.” And it was suggested that manure, which might have been carried and left upon the field in heaps for dressing, would go to the heir under this rule. Same Case, 505.

In Farrar & a. v. Stackpole, 6 Greenl. 154, it was held that by a conveyance of a saw-mill, with its appurtenances, the mill chain, dogs and bars passed to the grantee, although not attached or fastened to the building.

In Lawton, Exr., v. Salmon, reported in 1 H. Blackstone 259, note, which was an action of trover, brought by the executor against the tenant of the heir at law, to recover the value of certain salt pans, which the testator some years before his death had placed in his salt works, and which were of hammered iron rivetted together, brought in pieces and movable in the same way, not joined to the walls but fixed with mortar to a brick floor, and might be removed without injuring the buildings, although the salt works could not be operated without them, Lord Mansfield remarked : “ The inheritance cannot be enjoyed without them. They are accessories, necessary to the enjoyment and use of the principal. The owner erected them for the benefit of the inheritance. He could never mean to give them to the executor, and put him to the expense of taking them away, without any advantage to him who could only have the old materials, or a contribution from the heir in lieu of them.”

As between the executor and the heir, the decisions seem to rest mainly on the principle, that where the fixed instrument, machine or utensil, is an accessary to a matter of a personal nature, it should itself be considered as personalty; but where, as in this case, accessary to the realty, then it will be regarded as a fixture, and go to the heir. Lawton v. Lawton, 3 Atkins 13; Dudley v. Ward, Ambler 113; Lawton, Exr., v. Salmon, before cited; Elwes v. Maw, 8 East 38; Despatch Packets v. Bellamy, 12 N. H. 232.

Upon the facts stated, there can be no question in regard to the benches, which must be considered as personal estate.

The eighth and last reason of appeal, was, because the judge charged the appellant with personal property not belonging to the intestate, and which never came into his possession. The only controversy was respecting two turkeys, for which the appellant was charged in the probate court. The auditor finds them to have belonged to the intestate, to have wandered to a neighbor’s or relative’s house, after his death, and there to have remained several months, when they were disposed of by the person at whose house they were. They had never been in the appellant’s possession, nor had he ever called for them. It was manifestly his duty to collect the personal property, and if any of it were wrongfully converted, to recover its value. Not having done so, he should be charged for the loss which the estate has suffered through his neglect of duty.

Upon the whole, therefore, we are of opinion that the finding of the auditor is correct, with the exception of the insurance assessments for losses occurring in the life time of the intestate ; and the decree of the judge of probate having been vacated by the appeal, a new decree must be made, reversing the former one, and finding due to the appellant from the estate a balance of $5,124, instead of charging him with a balance of $16,154, as formerly decreed by the judge of probate.

As the appellee has prevailed in relation to the most important matters in controversy, and on the larger portion of the reasons of appeal, notwithstanding the change in the general result as to balances, the appellant cannot be allowed costs, but each party must pay his own, agreeably to the rule established in Griswold v. Chandler, 6 N. H. 61, and recognized in Mathes v. Bennett, Adm’r, 1 Foster, 203.

Decree reversed without costs.