Gookin v. Hoit

By the court. Whether the judge of probate bad authority to charge the administratrix in her absence, as stated by her counsel, we are not prepared to decide ; nor is it necessary, at this time, to form any opinion upon that question. Being duly cited to appear before the judge of probate, and render a further account, the administratrix neglected to appear ; and, in our opinion, it is no apology for this neglect, that she ex ected to have been charged by the judge, and intended to have appealed from his decree, and to have brought the Subject before this court. The creditor, at whose instance the citation issued, was entitled to have her account rendered, on oath, in the probate court, without being subjected to the trouble and expenses of an appeal. And we think, that 395 under the circumstances of this case, no injustice will be done, by taking her refusal to appear, and account, as an admission of sufficient assets, and as a refusal to pay the debt of the creditor, at whose instance she was cited to appear. It is possible, that she may have acted under a misconception of her duty and if the sum, for which execution may be awarded in this case, were of any considerable amount, we might be disposed upon terms, to enable her to correct any mistake she may have made. But this is a hearing in equity after a default; and the defendants will, at all events, be liable to the costs of the suit, which will be increased by further delay ; and the balance due to the creditor, for whose benefit this suit is prosecuted, after deducting the dividend, decreed to him by the judge of probate, is so small that it seems to us, justice to all concerned, requires us to award execution, at this time, for that balance.