Sellew's Appeal from Probate

Butler, J. This is a complicated case as presented upon the record, both parties filing motions for a new trial, and both motions in error, but the real questions are few. In order to give reasons for our decision in the case intelligibly, it seems necessary to extract the material facts from the record. Anson R. Scllew died testate, bequeathing his whole property in trust to his executors, for the benefit of certain relatives. Only one of the executors, Wilcox, accepted the trusts. The estate was duly settled and the balance in the hands of the executor ascertained. Subsequently the trustee settled his trust account with the coui’t of probate, upon three several occasions, and upon each the account was accepted and approved. The appellants appealed from the three several orders of the court of probate, accepting and approving the accounts of the trustee, and in the Superior Court filed their — 192 — reasons of appeal, assigning four several errors in the action of that court. The first error assigned is, that the trustee in presenting his trust account to the court of probate for settlement did not charge himself with the whole value of the property found to be in his hands upon the settlement of his executor’s account, but for a sum $630.98 less than the amount found to be in his hands upon said settlement. The second reason is, that the trustee sold a tract of real estate appraised at $2800, which was a part of said trust estate, and had not accounted for the proceeds. The third reason is, that the trustee had paid over, improperly and without law or right, to Emma A. Sellcw, a daughter of the deceased, and one of the cestui que trusts, a portion of the trust estate, to the injury of the appellant as residuary legatee. The fourth reason is, that under an erroneous construction of a clause of the will, the trustee wrong-fully retained the sum of $1000 for the use and benefit of Sarah O. Sellew, which sum should have been paid to the appellant as .residuary legatee. « These questions, with the clauses of the will which relate to them, and the facts as found by the court bearing upon them, wé will consider in their order. The court below, in respect to the first assigned error, found the settlement and balance in the hands of the executor as alleged; that the amount credited in his first trustee account was $630.98 less, as alleged; that the error was propagated through the three trustee accounts which were settled and approved; and on that ground reversed the decrees. Upon this point it appears from the appellee’s motion for a new trial that he offered evidence to show that the $630.98 was not properly chargeable to him—1st. Because a portion of the property charged to him in his executor’s account never in fact came to his hands. 2d. That there was a depreciation in some of the personal property charged in the inventory of the estate before it came into his hands as trus — 193 — tee. 3d. That there was a depreciation in some of the personal property between the time when he settled his administration account and the time when he settled his trustee account. 4th. That furniture to the value of $141.23 embraced in the inventory, and charged to him in the executor’s account, was claimed and taken by the widow and his title thereto failed. The evidence so offered was rejected by the court on- the ground that the matter was res adjudicata, and in that we think the court misapprehended the law. A decree of a court of probate, settling an executor’s or administrator’s account, is undoubtedly in the nature of a-final judgment, and conclusive of all matters involved in it. But it is not conclusive upon the executor or administrator of a money demand or liability, and the rule applicable to a judgment for -a money demand cannot be applied to it. The executor or administrator as a trustee receives the estate of a deceased person, administers upon it according to law, and presents an account of his administration, and it is settled by the court. The balance found on such settlement is a balance of the estate undisposed of remaining for distribution, and if the account has been settled in an orderly and proper manner the schedules will show with precision the items of property which compose that balance, and the decree is undoubtedly conclusive evidence that the executor or administrator has in his hands those items of personal property for distribution. There may be cases where the entire balance may consist of cash in the hands of the executor or administrator, but this case is not of such a character. But suppose a mistake has boon made in the settlement of the account, and an item of property which was supposed to be in existence was in fact lost or destroyed, and the fact was unknown to the executor or the court; must the executor lose, it? Or suppose an item of property which the executor supposed was part of the estate, and which is charged to him in the administration account, is subsequently taken from him by paramount title ; must the executor lose that ? Certainly not. The equity power of the court of probate is ample for — 194 — the correction of such mistakes, and for the protection of the executor. If the order of distribution has not been made, he may apply to the court for relief, setting forth the facts, and the court may find them true upon the record, and make the order of distribution conform. So, at any subsequent stage of the proceedings, the application may be made and the relief granted. Where, in a case like this, the entire estate is given to one person in trust, and where the trustee is a third person, and a part of the property has been taken from the executor by paramount title after distribution, the executor can have no relief against the claim of the trustee except by an application as executor, and an adjudication by the court of probate, for his protection. But where the executor and trustee are the same person, and the property is claimed and taken by paramount title subsequent to the settlement of the administration account, or subsequent to the distribution of the estate, we see no reason why an application should be made to the court of probate for relief by the trustee as executor, or why relief and protection may not be afforded him in the settlement of his trustee account. So, in like manner, if there is a loss of property without fault on the part of the trustee, or a loss upon the sale of the property, or any other occurrence in relation to it after distribution and before the settlement of his trustee account,, we can conceive of no reason why the court of probate in the settlement of that account may not afford him all the relief to which he is equitably entitled, and we do not see how, admitting the conclusiveness of the administration account upon all the matters upon which that conclusiveness has any bearing, the court of probate could refuse to grant him relief. Such being in our view the principles applicable in this case, we think it was competent for the court of probate to make an allowance in the trustee account for the failure of title to the furniture, or for any loss which had accrued from the sale of property by the trustee, or any other allowance to — 195 — which he might be equitably entitled, and if in fact it did that and no more, and if the difference of $630.98 was thus accounted-for, the decrees were not reversible simply because the amount found due in the settlement of the executor’s account and the amount with which the trustee charged himself in his account did not conform. The account of the trustee was undoubtedly incorrect in form. He should have charged himself with the whole amount which the court had ordered to be distributed to him and credited himself with any failure of title or loss or depreciation in the property decreed to be in his hands, and the finding of the court of probate upon the settling of the account should expressly or by necessary implication have determined the fact that he was entitled to those credits. Perhaps the decree was reversible for that reason, but there are not sufficient facts upon the record to show precisely what the decrees appealed from were. If the trustee was in fact entitled to credits to the amount of $630.98, as an offset to the balance found to be in his hands on the settlement of his executor’s account, and that appears expressly or by necessary implication to have been found and allowed by the court in the settlement of the .trustee account, the error in respect to form was not a fatal one. The Superior Court was- acting as an appellate court to determine the correctness of the trustee accounts, and was bound to give such credits as the probate court should have given, and received such evidence in relation to them as the probate court should have received. Por these reasons we think the Superior Court should have received the evidence offered by the appellee, and that because of its rejection a new trial must be granted. It is not necessary that we should express an opinion upon the other questions raised, but it is proper under the circumstances that we should do so in respect to the third reason of appeal briefly. The second issue raised by the reasons for appeal does not appear to have been pursued in the court below, and does not require notice. — 196 — The issue raised by the third reason for appeal was decided by the court below in favor of the appellee, and, we think, correctly. At the timo that the transfer of the property to Emma was made the previous contingent trust was determined, and the trustee under the will had power to transfer to her absolutely the whole or any part of the estate at his discretion. The court has found no fraud or improper con-, duct on the part of the trusteed, nor anything unreasonable in the exercise of his discretion, and certainly it is not our province to do it. In the determination of that issue by the court below there is no error. In relation to the issue raised by the fourth reason of appeal, we express no opinion, except to advise the Superior Court, before a new trial shall be had, to cause Sarah O. Scllew to be made a party in the case, that she niay have an opportunity to be heard in relation to her rights. In this opinion the other judges concurred.