Clarke v. Clay

Eastman, J. Upon the state of facts reported by the auditor, the first question presented is, whether the judge of probate decided correctly, in requiring the administrator to produce his accounts and vouchers for the same. We have, in our reports, three decisions which bear upon this question. Giles v. Churchill, 5 N. H. Rep. 337, was where the heirs of an intestate estate agreed to administer the estate without letters of administration, and one of them paid a [401] creditor of the deceased his debt in goods belonging to the estate of the intestate, and it was held that another of the heirs, who was afterwards duly appointed administrator of the estate of the deceased by the judge of probate, could not maintain trover against the creditor for the goods he had received. And in Hibbard, adm’r. v. Kent & a., 15 N. H. Rep. 516, it was held that where all the parties beneficially interested in the estate of a deceased person, being of age and capable, have adjusted and settled the matter, without mistake or fraud, each taking his agreed share and giving the others a discharge, and all the demands against the estate are settled, an administrator subsequently appointed, even if he is not an heir, cannot be allowed to defeat the arrangement and maintain trover against the parties for the property so received by them. In Kittredge, adm’r. v. Betton, 14 N. H. Rep. 401, it was held that a settlement, out of court, between a guardian and his former ward, who has come of age, and a release to the guardian, is not a compliance with the condition of his bond, which requires his guardian to render an account, when required, in the probate court. But the judge of probate may receive it as evidence that he ought not to be required to settle a farther account. The principle of these cases is this, that where the heirs of an estate, being of full age and capable, undertake to settle the estate between themselves, without administration, courts will endeavor to enforce those agreements. But where administration is taken, or a guardian appointed over a ward, and a settlement is made with the administrator or guardian, such settlement will not be conclusive upon the parties, but will be evidence for the consideration of the court in deciding whether a further settlement shall be ordered or the accounts examined. This distinction is clearly recognized in both of the last cases cited. In Kittredge v. Betton, Parker, C. J., says [402] “ we have no doubt that the judge of probate might have ordered, and if cause had not been shown to the contrary, it would have been his duty to have ordered an entire account; for the condition of the bond required an account to be’ rendered in the probate court.” And in Hibbard v. Kent, the same distinguished judge speaks of the difference between that case and the case of Kittredge v. Betton, there being, as he says, in the latter case, a bond to the judge of probate. And the distinction taken in these eases appears to be well founded. In the one class of cases, all the parties interested settle an estate without resort to the forms of law, and such settlement, fairly and understanding^ made, should be binding. In the other class, the legal course is taken, a bond is given, and the estate is placed in the hands of the judge of probate for settlement; and it is for the judge to say whether he will be governed by what the parties do or not. If he is satisfied that a fair and honest settlement has been made, without deception or overreaching in any way, he would receive that as the basis of his action ; but if for any good cause he thinks that the account should be fully examined, it is within his discretion so to say. In the present case, the administrator insisted that the judge of probate should take the certificate of the heir as conclusive of the correctness of the settlement, and pass a decree accordingly. This he declined to do. For what reason is not stated. But if it was made to appear to him that the settlement did not show the true state of the case, that the heir had agreed to it reluctantly, without having the full accounts and vouchers before him, as is found by the auditor, then he might very properly decline to pass the decree without an examination of the accounts and vouchers. This is not the case of a settlement without administration, as was that of Giles v. Churchill and of Hibbard v. [403] Kent, and it was within the discretion of the judge to order an examination of the accounts and vouchers, if he thought it should be done. This court, sitting as a court of appeal, may examine the accounts in the same manner that the judge of probate might have done, had they been before him. This we have done upon the report of the auditor. And we think the account should stand thus: The administrator should be charged with the amount of the inventory and other credits, in the manner stated in his accounts, and about which there is no controversy, being,................$612 50 He should then be allowed the forty-five items, stated by the auditor to be correct, and which we find to be so,j?eing...................... 352 83 Also the three other sums of $12, $50, and $12, found by the auditor to be correct, and which we also find to be so, being..................... 74 00 Likewise the $17,65, due his counsel,........... 17 65 Also the sum paid the heir, deducting therefrom the $54 note which Clay gave him, leaving. ... 130 42 574 90 The note was equivalent to a repayment of that sum to Clarke. For aught that appears, it may have been immediately transferred by the administrator. He should also be allowed the three dollars for attending the probate court in November, and the $6,50 for attending the same in December. No notice had been given him of opposition to the settlement of his account, and it was but right that he should have a continuance to examine the matter. But the charges for going to see the heir, to negotiate with him, should not be allowed. They were expenses in [404] curred by the administrator, upon his own motion, and not for the estate. The several items for which the administrator should be allowed, amount to $584,40, which, deducted from the amount in his hands, would leave due the estate $28,10, and for this sum the administrator should be charged. The result, then, is, that although the judge of probate was right in the decision which he made, yet the decree, as it stands, must be reversed, and the account must be settled upon the grounds above stated, that is, by charging the administrator with the $612,50, and giving him credit for $584,40, leaving a balance due the estate of $28,10. As to the question of costs of this appeal, although the appellant has succeeded in form, yet the ruling of the judge of probate was correct; and as the appellee has prevailed in relation to the most important matted in controversy, the appellant is not entitled to costs, but the parties must pay their own costs, respectively. Griswold v. Churchill, 6 N. H. Rep. 61; Leavitt v. Worster, 14 N. H. Rep. 566; Mathes v. Bennett, 1 Foster’s Rep. 188; Kingman v. Kingman, ante, p. 182.