In re Bingham

Redeield, Ch, J. This case involves the right of the judges of probate in the several districts in the State, under the proviso ions of the statutes, to enforce their final decrees on the accounts of executors and administrators by process of contempt. The terms of the statute are very broad; Ch. 47, secs. 12 and 13. “Probate courts may issue all warrants and processes in con-, formity to the rules of law, which may be necessary to compel the attendance of witnesses, or to carry into effect any order, sentence or decree of such courts, or the powers granted them by law.” “ If any person shall neglect or refuse to perform any sem tence, order or decree of a probate court, such court may issue a warrant directed to any sheriff or constable in this State, requir* ing him to apprehend and imprison such person in the common jail of the county, until he shall perform such order, sentence or decree, or be delivered by due course of law.” The thirteenth section above, which is chiefly relied upon as the basis of the proceedings against the relator, is found almost in the same words, in the revision of the statutes in 1797. The twelfth section was first adopted by the revision of the probate act in 1821, by Mr. Everett, and is nothing more than an amplification of the provision already existing under the revision of Nathaniel Chipman, in 1797. It is noticeable that the two sections together seem to define a course of proceeding very analogous to that in courts of equity. We think it could scarcely be daimed with any show of reason, that the legislature ever intended to give the probate courts any more summary powers in enforcing their decrees than those which pertained to the court of chancery. The probability is, we think, from the phraseology used, both in the revision of 1797 and of 1821, that the statute was intended to confer upon the probate — 336 — courts the same powers which belonged to courts of equity, in enforcing their interlocutory decrees, in regard to all pending proceedings in that court, so as to enable them to bring them to a final determination or decree. And we should not be inclined to question that it might have been the purpose of this statute to enable the probate courts to require specific acts to be done by their officers and appointees, for the furtherance of justice and equity, and the due administration of the law, in regard to matters pending in that court. This would certainly be a most convenient and reasonable power to be exercised by that court. We are aware that some of the Massachusetts cases seem to indicate that the probate court cannot enforce a specific decree, requiring an administrator to inventory goods as belonging to an estate ; Boston v. Boylston, 4 Mass. 318, and that the more appropriate remedy is a suit upon the administrator’s bond. But this case admits that the probate court may charge such administrator with the goods in his final account, which amounts to the same thing in another form. And other cases in that State, upon the analogous subject of guardianship, seem to hold that the proper remedy is in the probate court; Conant v, Kendall, 21 Pick. 35; Brooks v. Brooks, 11 Cush. 18 ; and deny all redress in the courts of chancery, or by direct action in the common law courts. This court would still incline to the opinion that the probate court might require specific acts to be done by its officers and appointees, and might enforce such decrees by process of contempt under the sections alluded to. And we are aware that the phraseology of the thirteenth section is broad enough to extend to all the final decrees for the payment of money made by the probate court. But we should feel very reluctant to suppose the legislature purposed to give such extraordinary powers to the probate courts, unless that is obviously the only rational construction which the statute will bear. We say this because it is obvious that no such powers were ever conferred upon any other court in the State, in enforcing its decrees or judgments. At the very session at which this provision was first adopted, and as part of the same revision, a provision is made in regard to the court of chancery, ftThat when any decree shall finally be made, a writ of execution — 337 — may issue in the same form, and shall in all things have the same effect as writs of execution on judgments at law.” As part of this same system of laws, it was in another chapter provided, at the same session (March, 1797,) when all these^ provisions were originated, that poor debtors should in all cases where the judgments were upon matters of contract, be entitled to the liberties of the prison upon giving bonds, and be discharged upon the surrender of all their property. In Cannon v. Norton, 16 Vt. 334, it was decided that debtors committed upon executions out of the court of chancery were entitled to the benefits of the statutes provided for poor debtors, with all their subsequent meliorations and exemptions. We think it would be impossible to conjecture any sufficient reason why the legislature should have invented, at the same time, and as part of the same system, a process for enforcing obedience to the decrees of the probate court so much more stringent and arbitrary than they were wib ling to confide to the court of chancery, whosp jurisdiction was at that time exercised directly and exclusively by the supreme court. It would be impossible to suppose there could have been any such purpose at the time. The difference in the provisions, in regard to execution of their final decrees, between the probate court and the court of chancery, in this revision, is significant, fis it seems to us, of what has been the practical construction of these provisions ever since, a period of nearly sixty years, viz: that the probate courts were left, and intended to be left, without the power of enforcing their final pecuniary decrees, which were in the nature of judgments merely, by process of execution. And it is certainly not a little remarkable that if this statute was intended to confer upon the probate courts the power to enforce their judgments ior the payment of money, by process of contempt, from which there was no appeal and no escape, it should never have been resorted to in all this long lapse of time ; that no contemporary jurist should ever have put the thing in practice, or alluded to its existence in such a form as to keep alive the tradition of such a power in that court, and thus have left the present generation without any knowledge of the existence of any such provision, except as it is to be inferred from — 338 — the terms of the statute. In a matter of this kind, which would have been so sure to be kept in use when once put in operation, we think the entire silence of tradition upon the subject is too significant to be i;eadily answered. It may be said there has been very little use of the sections referred to, in any form, and they must mean something. That may be true, but if the statute had been understood to mean what is now claimed, it would have proved so effective a remedy that it would not have been permitted to slumber, in all reasonable probability, for a single year. There are various grounds upon which, if this enactment were entirely new, and now for the first time to receive a practical construction, it might be argued that the general provisions of this statute should, or might fairly, be extended to the final decrees of the probate court upon the accounts of executors and administrators.The office of executor or administrator is fiduciary, and one of strict trust. There is, therefore, more propriety in requiring a strict accountability than in ordinary cases of simple indebtedness, in the way of contract. But it will also be remembered that the final decrees of the court of chancery are often in matters of trust, and may require this stringency of remedy, as much as, or more than, cases of this character. And although it may be true that the remedy in the court of chancery, by process of contempt, is not.expressly taken away by the statute, it must, nevertheless, be conceded that it is so in effect. It would be very unreasonable to suppose that the legislature intended to leave that still in force. That is the view taken of a similar statute in New York; Wegel v. Wegel, 3 Paige 38. And it is well known that in commitments out of chancery for the non-payment of money, the prisoners have been held entitled to the benefits of the insolvent laws, in England, even ; Rex v. Stokes, Cowp. 136 ; Rex v. Peeterill, 4 Term 809 ; Rex v. Davis, 1 B. & P. 336. But in Rex v. Hubbard, 10 East 408, it was held that one under imprisonment from an attachment for not paying the amount of an award, made a rule of court, was not entitled to the benefits of the Lords’ Act, 48 Geo III, ch. 123, because that act is confined, in terms, to persons in execution on any judgment. There would be the same difficulty in — 339 — giving tlie relator the benefit of the poor debtors’ act, if this commitment wore to be held valid. For this warrant is not an execution upon any judgment. But it has been said in argument that this is really a case of specific trust, where the moneys should have been in the hands of the relator, and may therefore be presumed to be so. We are not inclined to question the right of a court of equity, in a case precisely of that character, to enforce a decree for specific performance by process of contempt.’ That would apply to cases where the defendant had in his possession family memorials, such as pictures and busts, and other mementoes, whose chief value consisted in their relation to the orator, and very likely to a case where the defendant had specific money, in stocks, or in a parcel, which he had no right to use, but of which he was the mere depositary. And it would seem that the probate court might fairly be regarded as possessing some such power in the disposition of estates, under these statutory provisions, as we accord to the court of chancery. But we do not regard this case as one of that class. For if we concede that it is competent for the probate court to require the outgoing administrator to surrender to the administrator cle bonis non such specific goods as remain in his hands unadministered upon, it is obvious that it will fall far short of the present case, as it appears upon the face of the papers. This is a final account of the former administrators, of their whole administration. Instead of any attempt to charge them with any specific goods in their hands undisposed of, with a view to giving them over into the hands of the present administrator, the former administrators are charged with the entire inventory of the estate, as the basis of their account. This at once vests the absolute title of the goods in them, as having been in fact converted by them into money, or which, from the time elapsed, should have been so converted. The decree proceeds then upon the basis that the relator and his co-administrator are liable for so much money which they have received, or ought to have received, from the sale of the personal and the use of the real estate of the intestate. Now it is in vain to attempt to refine upon this state of facts, and to make it anything but a debt, a mere money debt, and — 340 — nothing more. There was no specific money in the hands of the relator or his associate which could be traced as the specific money of the estate. The money, when paid, became the money of the administrators. There is no ground to claim that there was any such duty to keep the money separate, as would render them liable to an action of trover for the use of it, or to an indictment for embezzlement on account of any use to which they might put it. The decree of the court of probate then is one for money due, and for that only, and is strictly a debt and nothing more. And we are satisfied there is no ground to consider that there was any power in the probate court to commit the relator for not paying the amount found due upon his administration account. We think the case is the same in principle as a decree of distribution among creditors, or heirs, or legatees. The obligation is no different because the relator was ordered to pay to the new administrator from what it would be in any case where the exec-?, utor or administrator is decreed to pay the balance of his account to creditors, or heirs, which is the usual and proper mode of making a final decree upon such accounts. We have said all which is important, perhaps, to show that the relator is entitled to his discharge. If the probate court had no jurisdiction to issue any such process for the purpose for whjch this issued, it will not be claimed that the fact that the relatóse refused to answer questions, or did not take an appeal, will make any difference. The decree had already merged all the prer ceding items of account in a mere money debt. There was, therefore, no occasion for any further examination in regard to it. The probate court had no further power to enforce it. The appeal must then be to the courts of law in an action, either upon the bond, or of debt, upon the decree perhaps, if that were preferable. And the relator not taking an appeal from this unlawful proceeds ing no more gives it any validity as against him than if it had been a specific sentence of corporal punishment. The whole proceeding is irregular and void. We are aware that our views are different from the decisions of the New York courts in Seaman v. Duryea, 10 Barbour 533 ; S. C. 1 Kernan 327. But we regard that case as based upon — 341 — views somewhat artificial, and which we believe would not have been so prevalent with any court had the question arisen between other parties. To argue that the power in the probate court to compel an administrator to render his account, implies the power to compel the payment of the balance found due, and by the same kind of process, on the ground that rendering an account imports ex vi termini, the payment of the balance due, is more refined, not to say forced, than can be made altogether satisfactory to the mind, unless when we are attempting to devise some expedient to shield an innocent officer from the relentless pursuit of an incensed paTty, who has been indeed unjustly restrained of his liberty, but who ought not to show a very severe spirit of retaliation, even for such an error, or mistake of the law, until he is able to pay such honorary debts as the balance of a trust account, which, although it is but a mere debt, in the law, is one of a very honorary character among men, and justly so regarded. Relator discharged.