113 A. 771 | N.H. | 1921
The substantial question between the parties is what questions are open upon the appellants' appeal from the decree of October 5, 1917, charging their testator as executor with a balance of $116,598.50. Upon a probate appeal the appellants are limited to the questions presented by their reasons of appeal while all matters involved are open to the appellees. This familiar and well understood proposition would not be transferred to this court as an important question of law except for the confusion which has arisen from the claim that certain findings made by the court preliminary to the decree of August 26, 1916, were to be treated as res judicata. But the findings of a trier of fact, whether a judge, jury, or referee, are not of any effect until their verity has been established by a judgment. Milford Manchester R. R.'s Petition,
The probate court appears to have understood the matter to be material, i. e. the executor is not to be charged if the bonds are income but is to be charged if they are not. If this be so, the fact is material and would be determined by the judgment. In such case, the question whether the bonds were income or principal would not only be a possible but a necessary issue to be determined in settling the account.
If, on the other hand, the accountant is chargeable with the bonds whether income or principal, the question is an immaterial one, which would not be decided by the judgment even if submitted to and passed upon by the tribunal. Morgan v. Burr,
If technically not in issue, as the question seems to be the principal matter in dispute, the parties may be able to devise a method for its determination in this proceeding without delaying for a further accounting by the executors of Jaques, or the administrator of Mrs. Jaques with a petition for a decree of distribution, or a direct proceeding by Jaques' executors against Mrs. Jaques' administrator for a legacy belonging to Jaques or some other procedure *126 which it is possible may be technically required to determine the controversy.
Case discharged.
YOUNG, J., did not sit: the others concurred.