Fish v. Morse

Manning J.: It appears from the report of the commissioners to the Probate Court, that the claim disallowed by the commissioners was a promisory note for $5,000. In making up the issue in the Circuit Court, the plaintiff filed a declaration containing two counts, instead of one. The first count is on a promise made by the intestate in his life-time, and the other on a promise made by the administrators on an account stated after the death of the intestate, between plaintiff and the administrators. A copy of the note, with notice that it would be given in evidence on the trial, was attached to the declaration. The first count, with a copy of the note attached to the declaration, was all that was necessary to put in issue the claim that had been passed on by the commissioners, and the second count may be regarded as surplusage merely. It is moreover defective on its face, as it does not show a valid claim against the estate of the deceased. Under our probate system, all claims against the estate of a deceased person, when commissioners have been ap [37] pointed to hear and adjust such claims, are to be presented to, and to be allowed by them. The estate is not bound by any account stated with the administrator. Had the jury, therefore, found for plaintiff on the second count, and assessed damages in her favor, it would have been the duty of the court to render the judgment it did, notwithstanding such finding, as they had found for defendants on the ' first and only count in the declaration that set forth a valid claim against the estate. The judgment must be affirmed with costs. Martin Ch. J., and Campbell J. concurred. Christiancy J., was absent.