American Board of Commissioners for Foreign Missions : Appeal from Probate

Ellsworth J. We are not able to see why the claim of the appellants against the estate of Mr. Robbins is not just and legal. In June, 1844, Mr. Robbins, being executor on the estates of Etty Hosford and Aaron A. Hosford, her nephew, settled the estate of the former in probate, and in that settlement credited himself as executor, with the sum of $3,066.98, as paid and belonging to the estate of Aaron A. Hosford, which sum he thereafter held as executor of Aaron, to the uses of his will, after the payment of debts and expenses. Debts to the amount of $647.60 appear to have been paid by him, but he has never done any thing more with the estate, neither inventorying the $3,066.98, nor distributing it, nor paying it over under the will; nor has he settled his administration account, so that it might appear what the residuum was, to be divided among the four residuary legatees, of whom the appellants are one. The superior court has however found, that, at that time, after paying debts, $1,218.38 remained in his hands for these four legatees, which it was his duty to have paid to them under the will; in not doing which, of course he was guilty of a breach of the bond; as likewise in [352] not inventorying the estate and settling his administration account according to law. We think the claim of the appellants, together with .the probate bond given for the due settlement of the estate and payment of the debts and legacies, have been properly presented to the commissioners on the estate of Mr. Robbins, and should have been allowed to the extent of the legacy. The money had been in the hands of Mr. Robbins since 1844. He had been liable for it until the time of his death, and why is not his estate at this time ? It must be so, we think, unless there be force in the objections which have been urged by the counsel of the appellees, which we will proceed to consider. The statute of limitations has been mentioned as one objection to the allowance of the claim, but this is no answer to a claim on the probate bond, as we consider this to be, which bond has been broken in the several particulars above mentioned within seventeen years before the claim was presented; so that if an action of assumpsit for the legacy could not now be maintained because of the statute, which we do not admit, the bond furnishes an additional and efficient remedy to which there can be no objection. Besides, as the executor would not settle the estate of Aaron A. Hosford, whereby it would appear that there was a residuum to be divided among the residuary legatees, he or his representative ought not now to complain of the delay, even if he could plead the statute in a suit for the legacy, which we need not decide, for we look at the claim before the commissioners as based on the probate bond and not on a simple legacy debt. Again it was said, that if the claim is held to have been made on the probate bond, then the form of proceeding before the commissioners and in the court of probate on taking out the appeal and prosecuting it in the superior court, is not proper and legal. We think the proceedings are in usual form. The appellants presented to the commissioners a certified copy of the probate bond with a statement of the amount claimed to be due them for the legacy, and insisted on the breaches before mentioned. This they certainly [353] could do, and if the bond had been broken, as they insisted it had been, it gave them prima facie a cause of action against the estate, and the burthen of defending was thrown on the appellees. Besides, it must be remembered that the commissioners being clothed with legal and equitable jurisdiction, the law requires no special form for presenting claims to them of either character. Technical rules do not prevail. A clear intelligent statement of the claim, one that commissioners can understand and act upon intelligently, is enough, and all objections to mere form, not made at the time or before trial, should not afterwards be allowed or regarded. In this instance the appellants made the same use of the bond that they would have done had they brought suit upon it in a court of common law jurisdiction. They were the real party to the claim, and not the judge of probate. He could not even, without cause, have withheld the bond from them, nor have authorized a non-suit, or a withdrawal of the claim from the commissioners ; nor was he bound to appear before the commissioners as a party unless he made a claim for himself, nor to employ an attorney to prosecute the case or to take out an appeal, nor even to take cognizance of the pendency of the claim before the commissioners or in the superior court. He is a mere trustee for all who are interested • in the legal settlement of the estate, and, since our late statute was enacted, he scarcely remains a party 'on the record— the actual claimant, whether he be creditor, legatee or heir, being required to insert his own name in the declaration or replication, together with a description of his claim against the defendant, and give bond to pay costs to the adverse party. Judgment when rendered will be in his behalf only, and to the amount of his claim, if no other is allowed. Just this much was attempted to be done in this instance, and we think it was effectually done. The bond and the specific claim or legacy of the appellants were duly presented, and when the claim was rejected, they caused an appeal to be taken to the superior court, and no question was made or could have been made but that the appellants were the litigant party and the only claimants for this breach of the [354] bond. Like an assignee of a note not negotiable, they could well pursue their claim in their own name through the bond held by the court of probate in trust for their benefit. It was said on the trial, that a suit on the probate bond is not the proper remedy to recover a legacy withheld by an executor. Wethinkitis, though ordinarily it is notthe onlyremedy. Assumpsit will lie against the executor if he has assets but will not pay them over. Adams v. Spalding, 12 Conn., 355. It was claimed that an administrator de bonis non on the estate of Aaron A. Hosford should have been appointed, and that that was the only proper course. But, as the very words themselves import, such an administrator is called in only where there is specific property of the deceased remaining unadministered. He then takes it as the immediate successor of the deceased, and never as succeeding a prior executor or administrator, for with such prior executor or administrator he has no privity whatever—not even enough to bring suit in his own name on a judgment rendered in the name of such prior executor or administrator. Nor probably can an administrator de bonis non bring suit for a devastavit, or call the executor or first administrator to account for money received for property sold. The remedy for this is on the bond, by the persons injured, and to the extent of the injury averred and proved. Alsop v. Mather, 8 Conn., 584. Young v. Kimball, 8 Blackf., 167. Coleman & al. v. Monds & al., 5 Rand., 51. Granger v. Harrison, 4 Florida, 56. Bird v. Holloway, 6 Sm. & Mar., 324. Adams v. Spalding, 12 Conn., 350. We advise judgment for the appellants. In this opinion Sanford and Seymour, Js., concurred. Storrs, C. J. and Hinman, J,, were not prepared to concur in the views expressed with regard to the form of the presentation of the claim to the commissioners and of the taking of the appeal, which latter they were inclined to think should have been taken in the name of the judge of probate ; nor in the opinion that the appointment of an administrator de bonis non on the estate of Aaron Hosford was not the proper course to have been taken. Judgment for appellants advised.