2 Vt. 440 | Vt. | 1830
delivered the opinion of the court.
The commissioners appear to have misapprehended the nature and object of the appeal before this court, and the correspondent duties imposed by their commission.
It appears by the copies sent up with the appeal, from the probate court, that the administrator, having progressed in the settlement of the estate, till he was ready to render his accounts before the court of probate, caused the creditors and heirs, and all concerned, to be duly cited to be present at a given time before said probate court, and make objections to his account. At the time set he exhibited his account; and it Was his duty to render an account of all the property which had come to his possession as administrator. The court of probate allowed his accounts, and decided what balance was in his hands, for the benefit of the creditors and heirs. By law any person interested in the estate of the deceased, and feeling aggrieved because the balance is no larger, may, within twenty days after pronouncing the decree, appeal to this court. JEliza Barker, one of the heirs in this case, has accordingly appealed from said decree. This appeal sets open every item of the accounts for examination before this court 5 and the appellant has a right to prove by disinterested witnesses, or by the oath of the administrator himself, any facts which will incréase the balance in the hands of the administrator, Therefore, the commissioners erred in excluding the testimony offered by the appellant. The monies, to be proved in the hands of the administrator by that testimony, should be brought into the accounts; and the administrator should show, that he has paid all the debts, or the dividends of the creditors, as well as the expense of settling, that the final decision of this court may be the final settlement of the estate, as to the rights of each individual.
Furthermore, the appeal having done aWay the force of the decree appealed from, and set open each item, of the accounts for re-examination, the commissioners should have reported upon each item, or class of items, of the accounts, and stated whether allowed or disallowed, and the reasons of their decision ; that is, the facts they find proved, as the reason of their decision. There is the same reason for this particularity in the present case, that there is in any action of account that goes to auditors. They should be much more particular, than the probate court .was in one respect. The account certified up shows allowances of large sums in gross, each of which must, from the nature of them, be composed of numerous smaller items, the justice and correctness
The reportmust be set aside, and the commissioners be re-fluired to make a new report, at the next term of this court. In collecting the materials for this new report, they must require the administrator to produce his vouchers and proofs, and show payment of all the debts, or dividends, as the case may be, and of all the expenditures claimed by him ; so that, whatever balance may be found in his hands will belong to the heirs, and be in readiness to be decreed to them according to their several interests in the same.
It has been urged in argument, that this appeal is not the proper remedy for the appellant; but, that she should have recourse to the administrator’s bond to the court of probate. Whatever might be the remedy upon the administration bond, that does not at all interfere with this right of appeal, and the right of having the true balance ascertained in the court of probate, or in this court of appellate probate jurisdiction. If this can be effected, the use of the bond will only be to secure the payment of the balance according to the decree. And, if there should still be a failure to account for all the monies received, there might afterwards be a resort to the bond.
Let a new commission issue returnable to the next term of this court.
Report set aside.
