Whitcomb v. Hutchinson

The opinion of the court was delivered by Pierpoint, Ch. J. This is an appeal from an order of the Probate Court directing the administrator to pay the debts allowed against James M. Whitcomb’s estate, and fixing the time therefor. The objection now made to the said order is, that the report of the cómmmissioners, of the claims presented and allowed against said estate, was signed by only one of the two commissioners appointed to adjust and allow such claims, the other commissioner having deceased before said report was returned. When the report came before the Probate Court, it appears from the records that said court, on consideration of the subject, found that the requirements of the law had in all respects been complied with by the commissioners, and thereupon accepted the report, and ordered it recorded. No appeal was taken from this order, nor from the allowance of any claim by the commissioners. Subsequent to this, and in due time and form, the administrator applied to said court to adjust and allow his account with said estate as its administrator, and on the 1st day of November, 1871, he presented his account to said court, in which he credited himself with the whole amount of the claims so allowed by said commissioners. On examination of said account, the court ordered that it be allowed as presented, and recorded. From this order no appeal was taken. The amount found in the hands of said administrator was $6,000. It appears that cither before or after the said settlement, the plaintiff here, as such administrator, paid all the debts so allowed against the estate, except the debt allowed- in favor of this defendant ; that he refused or neglected to pay. The amount of [313] this debt was $57.33. In 1874, the defendant applied to the Probate Court to make an order requiring the said administrator to pay the debts allowed as aforesaid against said estate. The administrator was duly cited to show cause on the 14th day of July, 1874. He appeared and acknowledged he had not paid the defendant’s debt. The Probate Court thereupon made an order that he pay the debts, &c. Prom that order this appeal was taken ; and the only objection that is now made to the order is, that but one of the commissioners signed their report, as before stated. Wo think this objection comes now quite too late. No objection was made by the administrator to the acceptance of the report by the Probate Court, and its action was final. Until a report of commissioners is accepted by the Probate Court, there is no perfected judgment of the commissioners. This is not like the case of Hodges y. Thatcher, relied upon by the plaintiff. That was an appeal from the action of the Probate Court refusing to accept the report 'of commissioners for irregularities on their part. The court decided that no appeal, would lie from such action; that there was no final action of the Probate Court; and the refusal to accept the report left the whole matter before commissioners. Had the report been accepted, it would have been different. An appeal then would have been proper. The acceptance of the report of commissioners, is clearly within the jurisdiction and authority of the Probate Court. Whether it properly exercises its authority, is a question that should be raised by appeal. In Hendrick v. Cleaveland, 2 Vt. 329, the Probate Court had assigned to a widow who had waived the provisions of the will of her husband, one-half of the real estate of her husband, when by law she was entitled to the use of one-third, as dower, during her life. The making of such assignment, the court say was an assumption of power not authorized by law, and such act was void ; “ But had the assignment been of only the use of one-third, any mistake or error in the exercise of the authority given the court, must have been corrected on appeal; and until a reversal on appeal, the dower would remain fixed and certain, and all persons concerned would be concluded by this proceeding.” In this case it does not appear but that all the claims were [314] presented to and allowed by the commissioners at their first sitting, when both were present; or that the survivor did any act, or that there was any occasion for his acting, until the return of the report; and as the Probate Court adjudged that all the proceedings of the commissioners were in accordance with the law, such may fairly be presumed to have been the fact. Whether the Probate Court were right in accepting the report with the signature of but one of the commissioners, under the circumstances, is a question that cannot now be raised. The court was acting within the legitimate scope of its authority, and if it erred, the error should have been corrected on appeal. The judgment of the County Court affirming the order and decree of the Probate Court, is affirmed; this, to be certified to the Probate Court.