Judge of Probate v. Fillmore

The opinion of the Court was delivered by Williams, J. The defendant contends in this case that the declaration is insufficient, for that the distribution among the heirs of the estate of Nathan Colgrove was not made in the manner pointed out by the statute, as it was not made by a committee appointed for that purpose. It is apparent, however, by an examination of the statute, that the appointment of a committe is required in those cases only, where estate real or personal is to be appraised and to be specifically set to the heirs. If the estate consists of money only, in the hands of the administrator, the interference of a comm jt [423] tee is not necessary; but the Court of Probate may, after ascertaining the proportion to which each one is entitled, order that the administrator pay the same. It is further urged on the part of the defendant, that it does not appear from the declaration, that the administrator or heirs had any legal or actual notice that distribution of said estate was to be made. No particular form of notice is pointed out by the statute, nor is it any where expressly enacted that notice shall be given to the administrator or heirs, when a decree of distribution is to be made.— No decree, however, ought to be made, affecting the rights of any person, unless he is notified. But the conclusive answer to this objection is, that the Court of Probate bad jurisdiction of the subject matter, and the decree must be presumed to have been madron previous regular proceedings ; and it could not have been necessary in the declaration to set forth those proceedings, or any thing more than the decree; for if the proceedings previous to the decree, and which were necessary to be had before making it, were erroneous, the decree could be set aside only by appeal, and until set aside it is conclusive. Bray. Rep. 18, Collins v. Crane. 1 Con. Rep. 467, Brown et al. v. Lanman. It is further contended that it should appear from the declaration, that the sums ordered to be paid could not be collected of the administrator, for that unless this appear, no suit can be maintained on tlie bond. There is no ground for this exception. It is set forth in the declaration, that the administrator was ordered to pay the prosecutors the sum due them by a certain day ; and that the administrator, although particularly demanded, hath not paid the same. One of the conditions of the bond is, “ that all the rest and residue of the said goods, chattels, rights, credits or estate, which should be found remaining upon the administrator’s" account, he should deliver and pay to such persons respectively, as the said Court of Probate by their decree or sentence, pursuant to the true intent and meaning of the law, shall limit and appoint.” This-neglect then to pay the sum to the prosecutors decreed by the Court of Probate, pursuant to that decree, was clearly a breach of this condition of the bond. There must therefore be Judgment for the plaintiff.