One of the two decisive claims of error in this case grows out of the action of the trial court in regard to the Collins and Miller claim. As appellant points out, Courts of Probate, and the Superior Court acting upon appeals from them, have ordinarily no jurisdiction to adjudicate the validity of claims presented against an estate. Isaac v. Stevens,13 Conn. 499, 505; Bacon v. Thorp, 27 Conn. 251, 262;Davis v. Weed, 44 Conn. 569, 575, 576; Cone's Appeal,68 Conn. 84, 90, 35 A. 781. Courts of Probate do, however, possess certain incidental powers beyond the scope of those expressly confided to them, where such powers become necessary in the discharge of duties imposed upon them. Hall v. Pierson, 63 Conn. 332,342, 28 A. 544. Among these is the power to determine for certain purposes, and to a greater or less degree
of certainty according to the particular case, whether claims presented constitute valid charges upon the estate, as, for example, where an administrator or executor credits himself on his accounting with expenditures made to pay them, or seeks authority to sell lands in order to pay debts of the estate, or asks the approval of a compromise. Edmond v. Canfield,8 Conn. 87; Wattles v. Hyde, 9 Conn. 10, 14; Davis v.Weed, 44 Conn. 569, 576; Chamberlin's Appeal,70 Conn. 363, 378, 39 A. 734; Bidwell v. Beckwith,86 Conn. 462, 470, 85 A. 682. One of the chief duties of an executor or administrator is to pay such claims upon the estate as upon examination he concludes to be valid charges. Brainerd v. Cowdrey, 16 Conn. 1,7; Davenport v. Richards, 16 Conn. 310, 321; Pike v.Thorp, 44 Conn. 450, 452. The Court of Probate has a supervisory power over, and can take appropriate steps to compel, the performance of that duty; Isham
v. Gilbert, 3 Conn. 166, 170; and it might well refuse to accept a final account of a solvent estate before the discharge of a claim which had been allowed against it.
In the case before us, the administrator in the return of claims presented, which he was by statute required to make, listed the Collins and Miller claim as not only exhibited to him, but as one he had allowed. It is true that the statute, General Statutes, § 4985, only requires a return of claims presented, without any specification as to whether they have been allowed or not, but it is certainly not unusual to apprize the Court of Probate of those which have been allowed; Cleaveland, Hewitt Clark, Probate Law and Practice of Conn., Form 62, p. 954; and since the information so disclosed may well be of material aid to the court in the performance of its duty of supervision over the settlement of the estate, that practice is commendable.Davenport v. Richards, 16 Conn. 310, 316. Such a
return is, of course, not conclusive as between the administrator and the claimant, and, despite it, the administrator may disallow the claim; but so formal a notification to the court does afford high evidence of his act, upon which, until he satisfies the court that the return ought not to be held binding upon him, the court is entitled to rely. Husted v. Hoyt, 12 Conn. 160;Isaac v. Stevens, 13 Conn. 499, 506; Caulfield v.Green, 73 Conn. 321, 324, 47 A. 334. The Superior Court has not directed that the Collins and Miller claim be paid, but has found it to be a charge upon the estate, as a basis for its order that the account presented should not be allowed as a final account, and that, before the estate can be closed, the administrator must dispose of it. Certainly no error can be predicated upon that action; and if, as the appellant claims but the record does not show, the court rejected evidence that the claim had been paid in the lifetime of the deceased, its action was correct, because to the issue before it such evidence would not be material.
The other substantial claim of error is based upon the action of the trial court in surcharging the debit side of the account with the reasonable rental value of the house occupied by the two daughters of the intestate. Since 1855 we have had a statute which, subject to certain exceptions not now material, gives to an executor or administrator possession, care and control of the real estate belonging to the deceased at his death during the settlement of the estate, and vests in him all the products and income from it. General Statutes, § 5027.* Under this statute we have recognized
the right of executors or administrators to the rentals due under existing leases and their power themselves to give leases good during the settlement of the estate; Nichols v. Dayton, 34 Conn. 65; Lockwood v.Tracy, 46 Conn. 447; Harris v. Taylor, 53 Conn. 500,2 A. 749; Pastine v. Altman, 93 Conn. 707, 709,107 A. 803; but we have never been called upon to determine whether it is their duty to lease the real estate brought within their control by the statute. While not trustees, executors and administrators do occupy a position in many respects analogous, for they have title or possession of the property of the estate solely for the benefit of those having valid charges upon it or entitled to share in its distribution; Hall v. Pierson,63 Conn. 332, 352, 28 A. 544; Ryder v. Lyon,85 Conn. 245, 253, 82 A. 673; and many of the rules determining the powers and duties of trustees apply to them. But one of the primary obligations resting upon an executor or administrator is to effect as speedy a settlement of the estate as is reasonably possible;Wheeler's Appeal, 70 Conn. 511, 515, 40 A. 452;Ryder v. Lyon, 85 Conn. 245, 252, 82 A. 573; and he ought not to continue to engage in business enterprises
except where some unusual circumstances may justify it. Hallock v. Smith, 50 Conn. 127, 128. This duty to settle the estate enters largely into a determination as to whether he is obligated so to deal with it as to make it productive of income; and because of it, an executor or administrator is rarely charged with interest where he has failed to invest funds in his possession;Boynton v. Dyer, 35 Mass. (18 Pick.) 1, 7;Wyckoff v. O'Neil, 72 N.J. Eq. 880, 882, 67 A. 32;In re Hagerty's Estate, 105 Wash. 547, 178 P. 644;Clark v. Knox, 70 Ala. 607, 617; Pennebaker v. Williams,136 Ky. 120, 145, 123 S.W. 6; although it may be his duty to invest them when they are to be retained by him for a considerable period. Perkins v. Hollister,59 Vt. 348, 349, 7 A. 605; Villard v. Villard, 219 N.Y. 482,498, 114 N.E. 789; Dortch v. Dortch, 71 N.C. 224. So with regard to making leases of the real estate in his control, hampered as he must be by the necessary limitation of such leases to the period of the settlement of the estate, and bound as he is to have the property ready for distribution as soon as the estate can be settled, an executor or administrator ordinarily is not chargeable with neglect merely by his failure to lease the real estate in his possession. The test to be applied to his conduct requires that he exercise ordinary prudence in the light of the circumstances surrounding him; McClure v. MiddletownTrust Co., 95 Conn. 148, 153, 110 A. 838; and that test might not require of him that he lease the premises. Indeed, his right of possession is in derogation of the common-law title of the heirs, and exists only that the funds derived from the property may be used to pay the charges upon the estate; McManany v.Sheridan, 81 Wis. 538, 542, 51 N.W. 1011; Campau v.Campau, 25 Mich. 127, 130; Lewon v. Heath, 53 Neb. 707,74 N.W. 274; and even in the absence of permission
from the court, he might be justified by the apparent fact of abundant other assets which could be used to pay such charges in permitting the heirs to occupy the lands without charge, rather than himself attempt to secure rentals for which he would have at the last to account to them. Remington v. AmericanBible Soc., 44 Conn. 512, 516; Stovall v. Clay,108 Ala. 105, 110, 20 So. 387. On the other hand, where the executor or administrator has in his possession and control lands or houses which might be rented by him and has reason to anticipate that the estate cannot be settled for a considerable period of time, the same test of ordinary prudence in its management may require that he make a reasonable attempt to rent them.
Here no adequate reason appears for keeping the estate open so long and it must be assumed to have been the voluntary choice of the administrator; without authority from the Court of Probate, the premises were in the continued occupancy of two of the heirs; there was at all times an outstanding claim for the payment of which no resources were available other than the real estate in question; and the stipulation that the reasonable rental value of the premises was $30 a month shows that they were rentable. Had he closed the estate promptly, as he might apparently have done by a sale of the premises, there is nothing to indicate that there might not have been a substantial sum to apply upon the Collins and Miller claim, which his account shows was the only claim against the estate. As it is, substantially all that has been realized must go to discharge expenditures made by him in maintaining a home for the two daughters. It is true that the statute provides that "the family" of the decedent shall be allowed to remain in the dwelling-house occupied by him until it shall be sold, distributed or otherwise disposed of according to law.
The two daughters might under some circumstances come within the description of the family of the decedent, but used as it is in this statute in contradistinction to the words "heirs or devisees," whose occupancy is only allowable under authority of the Court of Probate, the word "family" must be given a narrower meaning than mere relationship, and be taken to designate the collective body of relatives by blood or marriage who together form the household of the decedent; Hart v. Goldschmidt, 51 Conn. 479, 480;Dalton v. Knights of Columbus, 80 Conn. 212, 215,67 A. 510; Holnback v. Wilson, 159 Ill. 148,42 N.E. 169; Goss v. Harris, 117 Ga. 345, 348, 43 S.E. 734; and to imply a degree of permanency in their association together. Robbins v. Bangor Ry. Elec. Co.,100 Me. 496, 506, 62 A. 136; Tyson v. Reynolds,52 Iowa 431, 3 N.W. 469; Duncan v. Frank, 8 Mo. App. 286,289. The finding merely states that the daughters were living with the decedent in the house at her decease and did not appear to be dependent upon her, and that falls short of finding that they were members of her household. If the administrator proposed to keep the estate open, he should either have required the daughters to pay rent or should have rented the house to others. The trial court was right in sustaining the action of the Court of Probate in surcharging the account with the reasonable rental value of the premises. With the overruling of appellant's claim of error in this regard, his incidental contentions also fail; if the administrator did not expressly authorize the two daughters of the testatrix to occupy the premises, yet the finding of the trial court that he "permitted" them to do so follows from the fact that he had the right of possession and was under a duty to assert it against them; and evidence as to the rental value of the premises would be admissible as the basis for the determination
of the amount which ought to be charged against the administrator for his neglect. Shuffler v. Turner,111 N.C. 297, 16 S.E. 417; In re Estate of Holderbaum,82 Iowa 69, 74, 47 N.W. 898; Allen v. Shanks,90 Tenn. 359, 387, 16 S.W. 715; Burks v. Beall,77 Ga. 271, 3 S.E. 155.
There is no error.
In this opinion the other judges concurred.