Prescott v. Farmer , 59 N.H. 90 ( 1879 )

The appellant, being an administratrix, was not required to file a bond on taking the appeal. Gen. St., c. 181, ss. 3, 4.

The plaintiff, as administrator de bonis non of Prescott's estate, was Goss's official successor in the trust, and entitled to receive whatever remained of the estate in his hands on the settlement of his account, and, in default of payment, was the proper person to recover the amount of Goss's sureties by a suit on his probate bond. Judge of Probate v. Heydock,8 N.H. 491, 497, 498.

Generally, a decree of distribution by the judge of probate, or an acknowledgment of the claim by the executor or administrator, is necessary to the maintenance of a suit on a probate bond for a legacy or distributive share. Judge of Probate v. Briggs, 5 N.H. 68; Judge of Probate v. Adams,49 N.H. 150, 154; Adams v. Adams, 16 Vt. 228; 2 Redf. Wills 82, 83, and notes. The executor, Goss, took no appeal from the settlement of his account, in which the balance was found against him. That balance was made the basis of a claim against his estate, which was allowed by the commissioner, and a dividend upon it was paid in accordance with a decree of the probate court. This was a sufficient decree of distribution, and the payment, without appeal, a sufficient recognition and acknowledgment of the claim by the representative of Goss's estate.

A suit on a probate bond should be in the name of the judge of probate, after an order by him permitting it. Gen. St., c. 187, ss. 4, 5, 6. The suit was instituted before the commissioner of insolvency, and if any order for its prosecution had been necessary, the acceptance by the judge of probate of the commissioner's report, which included the allowance of this claim, was all that was necessary. The law compelled the plaintiff to present his claim for allowance, or suffer the consequence of a legal bar (Gen. St., c. 181, s. 16); and the statute requiring a formal order for leave to bring a suit, and a bond to be filed by the creditor, cannot be held to apply to a case of this kind.

By statute, the creditor in insolvent appeals, in case of accident or mistake, may amend his declaration, or supply its entire omission by filing one. Gen. St., c. 181, s. 17. The judge of probate, being a party to the bond to prevent a failure of justice, the amendment making him nominal plaintiff should be allowed. Belknap v. Clark, 58 N.H. 150; Judge of Probate v. Jackson, 58 N.H. 458; Laws of 1879, c. 7.

Case discharged.

BINGHAM, J., did not sit: the others concurred.