18 N.H. 415 | Superior Court of New Hampshire | 1846
The objection taken to this appeal is fatal. The 16th section, chapter 162, Revised Statutes, provides that claims of an administrator against an insolvent estate shall not be examined or allowed by the commissioner, but the same shall be examined, and allowed, if just, by the judge, on his settlement of the administration account, and added to the list of claims. And the 17th section enacts that if such claim is contested by any heir or creditor, the judge, unless the parties shall agree in writing that he shall decide it, shall refer the same to one or more referees, whose report, when accepted by the judge, shall be final, and the amount allowed placed on the list of claims.
The statute seems to have intended that the proceedings upon the private claim of the administrator against the estate should be final in the probate court. When the claim is committed to the determination of referees, their report is made final, in express terms, and it could not have been intended that the decision should be less so, when the parties agree that the judge shall decide the controversy. He acts as a referee in such case by agreement. The case is not, therefore, within the general provision for appeals from all the decrees, &e., of the judge of probate.
If the legislature could make the proceedings in the probate court final, they have done so; and there can be no doubt of their power to make the decision of a tribunal agreed upon by the parties final and conclusive, and to take away all right of trial by jury after a regular decision of the matter founded upon such an agreement.
If the parties had not agreed that the judge should decide, but the case had been referred by him under the provisions of the 17th section, the question might have arisen whether the legislature had á constitutional power to make the report final, and thus deprive the party of a trial by jury. But the administrator,. by the acceptance
Appeal dismissed.
