Judge of Probate v. Lane , 51 N.H. 342 ( 1871 )

Bellows, C. J.

The plaintiff’s second replication to the defendants’ plea of omnia performavit alleges that the executor did not well and truly administer the estate of the deceased, but fraudulently sold the real estate to one Hurd, in trust for his own benefit, for a sum much below its real value. The demurrer to this replication admitted its truth so far as well .pleaded, and the demurrer was overruled by the whole court holding the matter set forth to be a breach of the condition of the bond.

Upon a hearing in chancery, a breach of the bond having been established, the defendants contended that the executor’s accounts, including the proceeds of this salo, having been adjusted and allowed in the probate court, and this claim not having been there established and no decree of distribution passed, this claim could not bo maintained in this suit. But this objection was overruled, upon the ground that it was settled by the former decision.

"Whether it was so settled is now an important inquiry. The substance of that replication is, that the executor was guilty of unfaithful administration in selling the real estate of the testator, for much less than its value, to a third person to hold in trust for the executor, with the view to defraud the parties interested in the estate ; but there is no allegation of any charge made or allowed in the probate court on this account, or any decree of distribution ; or that the claim was in any way liquidated. Does, then, a decision, that the acts of the executor described in the replication constitute a breach of the bond, necessarily imply that, in determining to whom and for what sums executions shall be awarded, this court is to exercise an independent jurisdiction, and even to reexamine the adjustment of accounts in the probate court, from which no appeal has been taken ? In a suit upon an administration bond where a breach is shown, there shall be a judgment in favor of the judge of probate for the whole penalty, and the judgment shall be security for all interested. During the pendency of the suit, other persons may be allow'od to come in and indorse the writ and be parties, upon giving security for costs; and after judgment, persons interested, on giving security for costs, may sue out a scire facias on such judgment, to show cause why execution should not be awarded for their use out of the same. Gen. Stats., ch. 187, secs. 4, 7, 8, 11, and 12.

For breach of the bond there can be only one judgment, and that must be for the whole penalty whatever may be the breach ; and therefore a plea is bad that merely shows that the claim of the person whose name is indorsed on the writ is invalid because not exhibited in due time. If there appears to have been a breach of the bond, the judge of probate is entitled to judgment for the penalty, to stand as security for all persons interested, whether their names are indorsed on the writ or not. Judge of Probate v. Davis, 1 N. H. 248.

It must follow, as matter of course, that persons interested may be entitled to an award of execution, even although their claims were not perfected when the suit on the bond was brought, or even when the judgment was rendered, either by the proper decrees in the probate court, by judgment at law, or by assent of the executor. Accordingly, in Gookin v. Hoit, 3 N. H. 392, where the breach of condition was confessed by default, the cause was continued, to give the creditor an opportunity to cite the administrator before the probate court to render and settle his administration account; but the administrator on such citation, having refused to render such account, the court, at a subsequent term, held the refusal to be an admission of sufficient assets and a refusal to pay, and awarded to the creditor an execution for the amount of the debt allowed by the commissioner.

In the Judge of Probate v. Heydock, 8 N. H. 499, the breach of the administration bond was confessed, and upon a hearing in chancery execution was awarded to the administrator de bonis non for the amount found in the hands of the executor by the probate court, at a time subsequent to the bringing the suit on the bond. It was held there that the question was not whether the nonpayment of the balance in the executor’s hands was a breach of the bond, but whether the administrator de bonis non was entitled in equity to have execution for the balance; and it was held that he w'as, although the decree of the probate court was many years subsequent to the bringing of that suit.

The same principle is recognized in Massachusetts,—Hooker v. Olmstead, 6 Pick. 481,—where execution was awarded for sums of money received by the administrator since the commencement of the action.

It is quite obvious that this must be the true doctrine. The security is to be made available for the faithful discharge of the trust at every stage of it, whether a suit has been brought on the bond or not; and it would be absurd to say that by obtaining a judgment for the penalty of the bond, no remedy could be had upon it for subsequent cases of maladministration.

The matter before the court at the last October term was a hearing in .chancery. The breach of the condition of the bond had been established by the pleadings and the'decision thereon, and the judge of probate was entitled to judgment for the penalty.

The only question left was, whether in equity the persons whose names were indorsed upon the writ were entitled to an award of executions, and if so, for how much. The demurrer to the second replication' admitted its allegations, which in substance were held to be, that there was fraud in the sale of the real estate, and that constituted under the statute a breach of the bond; and it might be none the less so, even if it appeared that the injury caused by it had not been liquidated. See Judge of Probate v. Tillotson, 6 N. H. 38.

The question then arises, How shall the damages caused by such wrongful sale be determined in equity ?

For the proceeds of that sale the executor has charged himself in his administration account, which was settled and allowed in the probate court, for the sum of $425.00. The persons who are prosecuting this suit contend that he ought to have been charged with a much larger sum. It is very clear that it was within the jurisdiction of the probate court to determine that question, and decide how much he should be charged with. And we are inclined to the opinion that the probate court alone has original jurisdiction of that question.

By the General Statutes, ch. 170, sec. 2, he has jurisdiction of the probate of wills, and of granting administration, and of all matters and things of probate jurisdiction relating to the sale, settlement, and final distribution of the estates of deceased persons. The jurisdiction of the supreme judicial court in such matters is simply appellate. Gen. Stats., ch. 189, sec. 2.

The decisions in our State are to the effect that only the probate courts have original jurisdiction in cases of this sort. In Gookin v. Hoit, 3 N. H. 392, the breach of the bond was admitted by the default, and the plaintiff moved for an execution for $74.74, on the ground that the administrator had failed to inventory and account for certain personal estate, or to obtain license and sell certain real estate. The court held that the proper remedy for the creditor was to cite the administrator to appear before the probate court and render an account ; and the cause was continued for that purpose. In Judge of Probate v. Briggs, 5 N. H. 66, it was held that the refusal of an executor to account for a particular sum supposed to have been received by him was not a breach of his bond. This went upon the ground that it was no breach of the bond to refuse to account for what he contended he had not received, and that the time to determine the validity of such a claim is when the administration account is adjusted in the probate court. In delivering the opinion, the court cites the case of Rogers v. Wendell, Rockingham county, November term, 1815, in which Smith, C. J., said that “ whoever sued upon a probate bond must show a claim as creditor, heir, or legatee, and that there was a just debt. In general, all claims must be liquidated before they could be recovered upon a probate bond. If a claim was admitted, it need not be further liquidated. In that case, the claim was neither liquidated nor admitted, and could not be enforced in that way,” that is, by a suit on the bond.

In the case of Lovell v. Briggs there was a verdict of the jury charging the executor with the money in question, but judgment was arrested on the ground tlfat a refusal to account for the money in question was no breach of the bond. So a refusal to pay a debt of the testator is not a breach of the bond, unless the executor had previously admitted it to be due. Judge of Probate v. Locke, 6 N. H. 396. So in respect to a legacy not assented to or otherwise established. Judge of Probate v. Kimball, 12 N. H. 165.

In Hurlburt v. Wheeler, 40 N. H. 75, it was held that no action could be maintained upon an administration bond for not inventorying and accounting for the estate of the intestate, without first obtaining a decree requiring the administrator to account further, and his failure to do so, — saying, that the time and place to charge the administrator with property belonging to the estate not inventoried or accounted for is in the probate court, on his settlement of his administration account there.

As before stated, the amount found in the hands of the executor by the probate court, after the suit on the bond was brought and the breach admitted, was the amount fixed upon in the hearing in chancery for the award of execution, in Judge of Probate v. Heydock, 8 N. H. 491; and in that case there is good reason to believe that the decision was delayed for several years to await the action of tire probate court. In Massachusetts, it was decided that a court of equity had no authority to resettle an administration account, alleged to have been erroneously or fraudulently settled in the probate court, but the remedy is by appeal—Jenison v. Hapgood, 7 Pick. 1; or, if the settlement is a nullity, by citing in the administrator to render an account. In New Hampshire, the decisions of the probate court of matters within its jurisdiction are conclusive, in the same manner and to the same extent as the iudgments of other courts of record. Tebbetts v. Tilton, 31 N. H. 284; Merrill v. Harris, 26 N. H. 142.

In the case before us, the question of the amount to be charged to the executor for the real estate sold by him was not only within the sole original jurisdiction of the probate court, but it was actually adjudicated there by fixing the amount at $425 ; and that is conclusive against the whole world unless modified on appeal, or unless, upon a further account in the probate court, a manifest error appear. Nor does the fact that fraud in the sale is imputed to the executor make any difference, for, as an incident of the general jurisdiction of the probate court, it has authority to try all questions of fraud arising in the settlement of estates. Tebbetts v. Tilton, 31 N. H. 284; Wade v. Lobdell, 4 Cush. 510.

In this case, the question is, For what amount shall the defendant account ? and that has been passed upon by the probate court, and no appeal taken, although in case of mistake the probate court has still power to correct it—Allen v. Hubbard, 8 N. H. 489; Stark v. Gamble, 43 N. H. 467; but we think this court has no power to revise this de-cree except on appeal. Besides, a decree of distribution is necessary, and that is clearly within the jurisdiction of the probate court alone.

If this court has jurisdiction in this case to charge the executor with an additional amount for the real estate sold, it may of course charge him for moneys or property received for which no credit has been given by him, and, as a necessary consequence, give the executor proper credits on accofint of expenses of administration.

The result would be, the exercise of original jurisdiction in the settlement of accounts of administration, wliicli lias obviously never been contemplated.

It is urged that this action cannot be maintained because the claim was not exhibited to the executor according to the provisions of sec. 1, ch. 179 of the General Statutes. That section provides that no action shall bo sustained against any administrator if commenced within one year after the original grant of administration, nor unless the demand has been exhibited to the administrator and payment demanded; and by section two it is provided that no such action shall be sustained unless the demand was exhibited to the administrator within two years after the original grant of administration.

These provisions, however, do not apply to claims arising against administrators after the grant of administration, which are founded rather upon their private liability for breach of duty, than upon their obligations as representatives of their intestates. Such claims may not arise at all until after the lapse of two years from the original grant of administration, and of course could not be exhibited in the time limited by these provisions. This furnishes a strong argument against a construction of these provisions that should extend them beyond demands against the testator or intestate, existing at his death, inasmuch as they could have no practical application ; and so we think it has always been understood. By the law of 1789, 1 N. H. Laws 212, sec. 18, the provision clearly applies only to claims against the estate existing at the decease; and so is the law of January 2, 1829, ed. 1830, p. 370. The General Statutes are the same as the Revised Statutes, which are but a revision of the older statutes, and not intended to change them ; and this is shown by subsequent decisions under the Revised Statutes, which hold that the design of the statute requiring the exhibition of claims to the administrator was to bring them to his knowledge so that he might be enabled to judge in what manner the estate should be settled. This is the doctrine of Tebbetts v. Tilton, 31 N. H. 282, per Bell, J.; and also of Little v. Little, 36 N. H. 228, per Sawyer, J.

This is clearly the object of these provisions, and it could have no application to demands subsequently arising against the administrator in his private capacity, as is the case with the present claim.

Finding set aside.