Judge of Probate v. Tillotson

Richardson, C. J. delivered the opinion of the court.* It is contended in this case, that the suit has been commenced without a proper application to the judge of probate for the purpose, and that the writ has not been so endorsed as to entitle the creditors, whose names are upon the writ, to have execution. But we are of opinion that these objections are not well founded. When a suit is to be instituted upon a probate bond for the benefit of any person interested in the estate of the deceased, the statute requires that an application be made to the judge of probate for an order to commence a suit, and that the interest and claim of the applicant be stated in the application. The object of this is that the judge of probate may see, before he makes the order, that there is a legal claim which may be enforced by a suit upon the bond, and that the executor or administrator may understand what is sought to be recovered. And [296] no execution for the benefit of any person interested in the estate can be awarded unless such an application is produced. It is not necessary that the claim be described with any great degree of formality ; but it must be so •designated that its nature can be ascertained. It is said that the claims of Brackett and of Pearson, Boardman and Eastman, are not well described in the application. But the application shows two claims of Brackett; one, a sum allowed by the commissioners, the other, a claim settled by a judgment of this court. It does not appear how that judgment was rendered, but it was probably upon an appeal from the decision of the commissioners. We think these claims are well enough described. The gross amount of the claims of Pearson, Boardman and Eastman, is stated to be $329,23, allowed by the commissioners. But the sum actually allowed by the commissioners was $367,23. This mistake is not however material. The application shows with sufficient certainty what they sought to recover. Another objection to the endorsement upon the writ is, that it does not contain a description of the claims sought to be enforced. In order to entitle any person interested in the estate to an award of execution, it is necessary to show that his name has been endorsed upon the writ with his place of residence and addition. But the statute does not require the nature of his claims to be stated in the endorsement. Another objection to the endorsement is, that the names of some endorsers were placed upon the writ after the cause was removed by appeal from the common pleas to this court. But the statute which provides for the admission of persons interested in the estate to become parties to an action upon a probate bond during its penden-cy, is general, and is not confined to the pendency of the suit in the court where it was commenced. And any person who has obtained from the judge of probate an [297] order for the purpose, has a right to have his name endorsed upon the original writ in whatever court it may I* G m 31 f) It is farther contended, that the decree of the judge of probate, ordering the estate to be distributed among the creditors, is void ; in the first place, because, although the estate was not in fact insolvent, yet no interest is ordered to be paid upon the sums allowed by the commissioners. But it seems to us that if the creditors make no objection on this account, these defendants cannot be permitted to object. In the next place, it is said, the decree is void because the judge of probate was interested in the estate. It is true that a judge has, in general, no jurisdiction to try a cause, in which he is interested. 5 N. H. Rep. 98; 5 Mass. Rep. 90; 5 Pickering, 483. In this state it is 'provided, by statute, that when a judge of probate is interested in an estate, the account of the executor or administrator shall be settled by the judge of probate of some adjoining county. But no provision is made for any other case. It was probably supposed that in all other cases an appeal would be remedy enough. How it may be with respect to his own claim need not be now settled ; but we are of opinion, that with respect to other creditors it is no objection to the decree that the judge of probate was interested in the estate. Execution awarded for the amount of the claims and interest. Footnotes [*] Parker, J. haying been of counsel did not sit.