McLaughlin v. Newton , 53 N.H. 531 ( 1873 )

Sargent, C. J.

As this case was originally presented, it raised the question, whether a claim of an administrator against the estate is barred by the statute of limitations, either the three years’ limitation, applicable to other claims against the estate of a deceased person, or the six years’ limitation, which is applicable to claims in general, except to those against estates of persons deceased.

We believe the cause of justice would be promoted by holding that it is the duty of the executor or administrator to plead this general statute of limitations in all cases of claims against the estate to which it applied, though it has been held otherwise; and we also think that it would be just to hold, if that were the law, that an administrator, who did not present his private claim against the estate so that it could be allowed within three years from the date of his appointment, should not be allowed to present it, or to have it allowed afterwards; but we do not find the law to be so. And, in the absence of such a law, we know of no reason why the administrator may not, as in this case, prove his claim against the estate, and have it allowed, even after the expiration of six years from the date of his own appointment as administrator. The only remedy that those interested in the estate now seem to have is, that they may, any of them, if they choose, call on the administrator to settle his account, and to present his private claim, if he has any, at any time after the year has expired, within which it is his duty to settle his account and present his claim.

But the amendment in this case gives a new complexion to the whole case. The case before was an agreed case upon an appeal from the decision of the judge of probate allowing the private claim of the administrator against the estate of his intestate. But the amendment shows that the decision upon this claim was made by the judge of probate, as referee, under a written submission signed by all the parties interested, in which case the decision of the referee would be final and conclusive, and there would be no appeal from the same, nor would them be any right of appeal on the part of the administrator or of the creditor. It was a voluntary submission under the statute, which was designed to be final, and to take the place of an appeal and trial by jury in ordinary cases. The design was to expedite the settlement of estates. This estate was settled as an insolvent estate, a fact not stated in the case or the amendment, but which is a fact having an important bearing in its decision.

The statute regulating the proceedings in this case are secs. 16 and 17 of chap. 180, General Statutes, and are as follows: 16. “Any claim of the administrator against the estate shall not be examined or allowed by the commissioner, but the same shall be examined and allowed, if just, by the judge, on the settlement of his administration account, and added to the list of claims, — notice of such claim being given in the citation to the heirs and others to hear such account.” 17. “If such claim is contested by aiiy heir or creditor, the judge, unless the parties agree in writing that he shall decide it, shall refer the same to one or more referees, whose report, when accepted by the judge, shall be final, and the amount allowed placed on the list of claims.”

If there is no contest in regard to, or objection to, the allowance of such claim, then the judge passes upon the claim, and it is added to the list of claims. There is, of course, no appeal, nor any chance for any : but when there is any contest in relation to the claim, it is not desirable that the judge should thus pass upon the claim, and have an appeal in which the administrator, as an individual, would be contending against himself in his official capacity, which could not be desirable, to say nothing of the propriety of such a course. Instead of this course, the law provides that the judge of probate, instead of undertaking to decide upon the claim himself, shall appoint one or more referees, to whom the claim shall bo referred, and whose report, when accepted by the judge of probate, shall be final; or, the parties might agree in writing that the judge should decide it for them, instead of the referees, and it was of course intended that his decision, when made as referee acting under the written submission of the parties, should be final, — at least, as much so as the report of the referees, whom he was authorized to appoint without their agreement or consent.

We find this whole question settled in Piper v. Clark, 18 N. H. 415, the opinion by Parker, C. J., in which, after recapitulating the statute in precisely the terms in which it now exists, he says, — “ The statute seems to have intended that the proceedings, upon the private claim of the administrator against the estate, should be final in the probate court. When the claim is committed to the determination of referees, their report is made final in express terms, and it could not have been intended that the decision should be less so when the parties agree that the judge shall decide the controversy. He acts as referee in such case by agreement. The case is not, therefore, within the general provision for appeals from all the decrees, etc., of the judge of probate. If the legislature could make the proceedings in the probate court final, they have done so, and there can be no doubt of their power to make the decision of a tribunal, agreed upon by the parties, final and conclusive, and to take away all right of trial by jury, after a regular decision of the matter founded upon such an agreement. If the parties had not agreed that the judge should decide, but the case had been referred by him under the provisions of the 17th section, the question might have arisen whether the legislature had the constitutional power to deprive the party of a trial by jury. But the administrator, by the acceptance of his office, may, perhaps, be held to have waived any claim to such trial, even when the case is referred by.the judge.”

We think the administrator waives any such right, not only by accepting liis office with full knowledge of the provision of the law in that regard, but that he also waives such right by voluntarily accepting a place which necessarily makes him, in a sense, a party on both sides of the question; for, although the law gives to an heir, or a creditor, the right to contest such claim, yet the real contest is between the individual and the officer, both being the same man.

In this case the parties agreed, in writing, that this claim of the administrator against the estate “ may be heard and determined by the judge of probate;” and he having determined it, there is no appeal from his decision, and no case properly before us.

Case discharged.