Mathews' Appeal

The principal question in this case relates to the operation and effect of the recorded agreement upon the jurisdiction of the Court of Probate, and not to its binding force upon the parties to it. These two questions are distinct and separate. If the instrument is binding upon the parties, it does not necessarily follow that it affect the jurisdiction of the court.

The precise claim of the administrators is, in effect, that upon the recording of the agreement, the power of the court, under the circumstances of this case, to adjudicate upon the administration account, was at an end.

We are of the opinion that this claim is without foundation. Our statute (General Statutes, § 629) provides two modes of distribution: one by appointed distributors, and one by the parties themselves. This is an ancient statute, originally passed in 1699. Rev. Statutes, 1808, pp. 265, 266, §§ 12, 13, and notes. Its language originally was that the agreement of distribution "shall be accepted, and allowed for a settlement of such estate." This remained the language of the statute until 1875, when it was changed, apparently by the revisers, to this: "shall be a valid distribution of said estate:" Rev. of 1875, p. 372, § 5; and this is the language of the present statute. The word "settlement" in the earlier, and the words "valid distribution" in the later statute, mean the same thing; they both describe the effect or result of one and the same act in the settlement of estates, namely, that which ascertains and determines the individual shares of the distributees in and to specific property. Such an act of distribution when it is in all respects according to law, ordinarily puts an end to the power of the Court of Probate over the "estate," and over the property distributed, save in a few exceptional cases which it is unnecessary to consider here and now. "It must be admitted, that very generally the distribution of an estate is the last act of administration, and closes the concern." HOSMER, C. J., inGriswold v. Bigelow, 6 Conn. 258, 266. Distribution by agreement of the parties is but a substitute for distribution by appointed distributors. Baxter v. Gay, 14 Conn. 119,122; Seymour v. Seymour, 22 id. 272. Both are statutory modes of distribution; and to be effective so as to put an end to the power of the Court of Probate over the settlement of the estate and over the property distributed, the requirements of the statute must be complied with. Dickinson's Appeal,54 Conn. 224. When such requirements have been complied with, the one mode is just as effective and conclusive as the other, and no more so. Before a distribution valid for all purposes — one that will put an end to the settlement of the estate and the power of the court — can be made in either of the statutory modes, the estate to be distributed must be first ascertained by that court, by the settlement of the administration account, and the deduction of the ascertained expenses and charges. This is a condition precedent to such a distribution as will put an end to the jurisdiction of the Court of Probate over the unsettled administration account. Edmond v. Canfield, 8 Conn. 87, 90; Davenport v.Richards, 16 id. 310, 318. This is manifestly so as to the power of distributors, and the parties have no greater power in this respect than distributors. Webster v. Merriam,9 Conn. 225, 229.

It is clearly within the power, and it is the duty, of the Court of Probate, before final distribution is made in either of the statutory modes, to ascertain the "estate" to be distributed, by adjudicating upon and settling the administrated, account; and if before this is done the court accepts a distribution made by its distributors, or records one made by the parties, its power and its duty, in respect to the administration account, remain as before, and are not affected by such acceptance or recording.

The record in the present case shows that when the agreement in question here was recorded, there had been no settlement of the administration account in the Court of Probate or elsewhere, and that no such settlement has since been had. It also shows that after the agreement was recorded, the estate, or a considerable part of it, was not delivered over to the parties but remained in the hands of the administrators for some years, and for aught that appears is still in their hands, and that they have purported to hold it and deal with it as administrators. It further appears that disputes as to certain items of property of the estate have existed between the distributees and the administrators from the beginning, and that since the agreement was made both the parties and the Court of Probate have made repeated attempts to have the administration accounts settled. Under such circumstances there is nothing in the statute which requires us to hold that the agreement put an end to the jurisdiction of the Court of Probate over the settlement of the accounts.

We have considered the agreement only in respect to its claimed effect upon the jurisdiction of the Court of Probate over the administration account. The question as to its effect and operation upon and between the parties, or otherwise, is not before us and has not been considered.

We think the Court of Probate in November, 1898, had full jurisdiction over the administration accounts and the settlement thereof, as to all matters not previously passed upon by it, whether such matters occurred before or after the record of the agreement.

The remaining question is whether on the appeal in this case from the decree of the Court of Probate denying that it had jurisdiction over the administration account and the settlement thereof, the Superior Court may, on disaffirming that decree, go forward and settle that account, or whether the matter must go back to the Court of Probate for settlement.

Mrs. Mathews applied to the Court of Probate for a settlement of said account, and the court on such application ordered an account to be filed. At the hearing, that court decided that it had no jurisdiction over the settlement of the account. An appeal was taken from that decision to the Superior Court, and the cause is now pending there.

We think that court, as an appellate court of probate, has power to go forward and settle the administration account as fully as the same might have been settled in the Court of Probate, and that the interests of all concerned will be best subserved by such a course.

The Superior Court is advised (1) to disaffirm the decree of the Court of Probate appealed from in this case; and (2) that it has power to go forward and settle the administration account as fully as the same could have been done in the Court of Probate had that court entertained jurisdiction of that account.

Costs in this court will be allowed to the appellant.

In this opinion the other judges concurred.