Clark v. Clark, 21 Vt. 490

21 Vt. 490 | Vt. | 1849

The opinion of the court was delivered by

Poland, J.

This was an appeal by the administrator from a decree of the probate court upon the settlement of his administration account, and comes into this court upon exceptions taken to the decisions of the county court upon a report of commissioners, appointed to take said account. Several questions have been discussed and are presented for our decision.

1. The first is in relation to the charge of $81,85, in the account of the administrator, for money paid Solomon Beach upon a note against the intestate. The commissioners report, that the note was presented by Beach to the commissioners upon the estate of W. S. Clark, and that it was really allowed by them against the estate, and that a certificate of such allowance was made by the commissioners on the back of the note, but that, by some oversight, it was not stated in their report, returned to the probate court; and that after* ward Beach presented the note to the administrator, and he paid it, and charged the amount in his administration account. It does not distinctly appear from the commissioners’ report, at what precise time the administrator paid this claim to Beach; and it is not perhaps material, except for the purpose of determining what would have been the legal remedy for Beach to have pursued, to get his debt, in case the administrator had refused to pay it to him. The claim had in fac tbeen presented to, and been allowed by, the commissioners, and the mere fact that it was omitted in the report would not deprive the claimant of his right to receive payment out of the funds in the hands of the administrator. The report might have been recommitted to the commissioners for correction, or the probate court might have re-opened the commission, to have the claim again presented. Under these circumstances, if the administrator thought best to pay the claim without this expense, and did do so, we think it was clearly within the proper power of the probate court to allow the amount to him in his administration account, and, from the facts reported by the commissioners, their duty to do so. We think the principle of allowing this claim is fully established by the case of Mead et ux. v. Byington et al, 10 Vt. 116.

2. As to those items allowed to the administrator by the commissioners not included in his account presented ter the probate court, The counsel for the heirs contends, that nothing could be litigated on an appeal from a decree, in such a case as the present, except items presented to and acted upon by the probate court in the first instance; but such objection is clearly unfounded. The appeal carried up the whole matter to the county court, and either party could have the right to present any claims, proper to have been presented and acted upon by the probate court, whether in fact presented there, or not. The county court sit to try the whole matter involved in the administrator’s accounting, and not to revise the errors of the probate court merely.

3. As to the claims against the administrator by the heirs. Whether the administrator had been guilty of any such neglect in the management of the saw mill, as to subject him to any charge for the loss of its use to the estate, or whether he had beeu guilty of such neglect and mismanagement, in not making a sale of it, were wholly questions of fact, which have been fully decided and reported by the commissioners. So in relation to the claim for wheat. The commissioners have reported, that they have charged him with all that was raised, except such as was used by the family, and, in other ways, for the benefit of the estate. Whether the commissioners came to correct conclusions upon these questions, or not, cannot be inquired into here. Their finding upon any question of fact is as conclusive as that of a jury, or of an auditor in an action of book account. In the case of appeals from the probate court, which come into this court on exceptions to the decision of the county court, this court sit, not as a supreme court of probate, (as was formerly the case, where appeals were .made directly into the supreme court,) but only as a court of errors, to revise decisions of the county court upon questions of law.

4. The county court, upon the report of the commissioners, disallowed the claim of the administrator for the sum paid Hiram Clark, and also disallowed his claim to be allowed for counsel fees before the probate court and on the hearing before the commissioners ; but no exceptions were taken by him to this disallowance, we have therefore no occasion to examine into the propriety of the decision of the county court upon these items. If the judgment of the county court had been reversed upon any of the exceptions taken by the heirs below, it would then become the duty of this court to examine the whole case and render such judgment, as the county court ought to have rendered; but as all the exceptions taken are overruled, we cannot re-examine any questions, which were decided against the other party, and to which decisions no exceptions were taken. Wheelock v. Moulton, 13 Vt. 430. Cumings et al. v. Fullam, Ib. 434.

5. The allowance of costs by the county court being a matter within their discretion, and their judgment being affirmed in every particular, we think their allowance of taxable costs to the administrator should not be disturbed; and he will be entitled to his costs in this court.

Judgment affirmed.