Gregory v. Benedict

CabpenteR, J. The defendant had a claim against the estate of Mary Stevens, deceased, amounting to over $2,000, which was duly presented to the commissioners on said estate. The plaintiff presented the notes now in suit to the commissioners at their first meeting, and the defendant admitted them to be valid and due. It was the duty and the privilege of both the executor and the claimant to insist that they should be applied to the claim presented. Neither party had a right to insist upon a different course withoutjhe consent, express or implied, of the other. It is incumbent therefore upon the plaintiff, who now seeks to recover the amount of these notes on the ground that they were not set off against the defendant’s claim by the commissioners, to show the further fact that the omission to do so was consented to by the defendant. No such consent, express or implied, appears in the finding. It does appear that at the second meeting of the commissioners the plaintiff and his counsel proposed to the defendant that the notes should not be deducted from her claim. But it as distinctly appears, not only that the defendant did not agree to the proposition, but that she insisted that the notes should be taken into consideration by the commissioners, and deducted from her claim. Not only so, but she supposed that it had been done, until after the time fixed by law for appealing from the action of the commissioners had expired. We cannot therefore sustain the plaintiff’s claim, without holding, as matter of law, that either party may, not only without the consent, but contrary to the claim, and without the knowledge even, of the other party, withdraw from the consideration of the commissioners matters which are clearly within their jurisdiction, and which it is their duty to pass upon, and reserve them for future litigation. Such a doctrine once established would prove a fruitful source of litigation, and subject parties interested in the settlement of estates to needless vexation and annoyance. [25] But the court has further found upon the testimony of one of the commissioners (the other being dead) who testifies after the expiration of four years, that these notes were not deducted. Waiving the question as to the admissibility of this evidence, and taking the fact as found, it does not aid the plaintiff. The fact still remains that the unusual course pursued by the commissioners was without the knowledge, and against the consent, of the defendant. Moreover, there would seem to be a want oi due care on the part of the plaintiff in allowing them to report the claim without deducting the notes, and without having it clearly understood by all concerned.. The course proposed by him was an unusual and extraordinary one. The motive which prompted it, and the good purpose to be accomplished by it, do not appear. It was his duty to see, either that the defendant consented to it, or that the commissioners did not do it. There is undoubtedly a hardship in allowing the defendant to recover her full claim, and subjecting the estate to the loss of the notes; but we cannot for that reason afford to establish an unsound and mischievous principle of law, as the evils resulting from a perversion of law will be much greater, in the aggregate, than any hardship existing in the present case. If the hardship is the result of the party’s own want of care, he certainly has no reason to complain. If, however, as may be true, it is the result of a mistake or a misunderstanding, perhaps a court of equity or the court of probate may grant him relief. At all events we think the law is so that he is not entitled to recover in this action, and we advise judgment for the defendant. In this opinion the other judges concurred.