| N.H. | Jun 15, 1872
I. At common law, the recusation of a judge does not
The statutes of several States have provided that a judge of probate shall not sit in a cause in which he is interested, and have provided, also, for the trial of such causes by other judges. In such cases, it has been held that the acts of a judge of probate, over an estate in which he is interested, were void absolutely. In such case, the judge could have no jurisdiction, as he was prohibited from sitting or acting in the cause by express provision of the statute. Waldron v. Berry, 51 N. H. 136.
Such has been held to be the law in New York, under a similar statute provision. Edwards v. Russell, 21 Wend. 63" court="N.Y. Sup. Ct." date_filed="1839-01-15" href="https://app.midpage.ai/document/edwards-v-russell-5515260?utm_source=webapp" opinion_id="5515260">21 Wend. 63; Low v. Rice, 8 Johns. 409" court="N.Y. Sup. Ct." date_filed="1811-10-15" href="https://app.midpage.ai/document/low-v-rice-5472921?utm_source=webapp" opinion_id="5472921">8 Johns. 409; Clayton v. Per Dun, 13 Johns. 218" court="N.Y. Sup. Ct." date_filed="1816-05-15" href="https://app.midpage.ai/document/clayton-v-per-dun-5473677?utm_source=webapp" opinion_id="5473677">13 Johns. 218; Colvin v. Luther, 9 Cow. 61; Striker v. Mott, 6 Wend. 465" court="N.Y. Sup. Ct." date_filed="1831-01-15" href="https://app.midpage.ai/document/striker-v-mott-5513592?utm_source=webapp" opinion_id="5513592">6 Wend. 465; Oakley v. Aspinwall, 3 N. Y. 548. Similar decisions have been made in Massachusetts, under similar laws. Cottle, apt., 5 Pick. 483; Coffin v. Cottle, 9 Pick. 287; Sigourney v. Sibley, 21 Pick. 101, and S. C., 22 Pick. 507; Davis v. Allen, 11 Pick. 466; Bacon, apt., 7 Gray 391; Gay v. Minot, 3 Cush. 352.
A distinction is noticed in Massachusetts, which may throw some light upon this case. In Cottle, apt., 5 Pick., and Bacon, apt., 7 Gray, supra, it is said that though the judge is ousted of his jurisdiction by interest, so that his acts as judge are absolutely void, yet that the fact that the judge of probate had acted as the agent or attorney of a creditor of the estate, however improper, would not oust him of his jurisdiction so as to render his official acts void. The distinction must be founded upon the statute provision. In the one case the statute says he shall not act or sit as judge, while in the* other it is provided that the judge shall not be of counsel, &c., in cases that may come before him as judge. He is prohibited from acting as counsel, but it is not said that, in such cases, he shall not sit or act as judge; but the prohibition is that he, being a judge, and it being made his duty to settle all estates in his county, shall not do certain other acts which are deemed tó be inconsistent with the fair and faithful performance of those duties which devolve upon him as judge. In such cases the statute does not take away his jurisdiction as judge, but leaves his acts, as at the common law, not void, but voidable.
In one view, our courts of probate are of limited and special jurisdiction, viz., in that they have no jury, and their proceedings are not according to the course of the common law. Wood v. Stone, 39 N. H. 672. Yet they are to be regarded as courts of general jurisdiction on the subjects to which they relate, and are entitled to all the presumptions in favor of their proceedings which are allowed in the case of other tribunals of general jurisdiction, — more especially as they are now made by statute courts of record. Rev. Stats., ch. 152, sec. 19; Gen. Stats., ch. 170, sec. 1; Tebbetts v. Tilton, 24 N. H. 120; Kimball v. Fisk, 39 N. H. 110. And their judgments where they have jurisdiction are conclusive. They may be reexamined on appeal, but cannot be impeached collaterally, except for fraud and want of jurisdiction in the court. Wilson v. Edmonds, 24 N. H. 517; Merrill v. Harris, 26 N. H. 142; Hurlburt v. Wheeler, 40 N. H. 73; Tebbetts v. Tilton, 24 N. H. 120, and S. C., 31 N. H. 273-288; Kimball v. Fisk, 39 N. H. 110; Hall v. Woodman, 49 N. H. 295.
The constitutional provisions in this State bearing upon this subject, ai’e part 2, art. 79 : “ No judge of any court, or justice of the peace, shall act as attorney, or be of counsel to any party, or originate any civil suit in matters which shall come or be brought before him as judge or justice of the peace.” Art. 81: “ No judge or register of probate shall be of counsel, act as advocate, or receive any fees as advocate or counsel, in any probate business which is pending or may be brought into any court of probate in the county of which he is judge or register.” There is nothing here that forbids the judge from acting in the capacity of judge in any case, but the prohibition is against doing other things that might be inconsistent with his-proper position as judge.
We have also several statute provisions that bear upon this question. By General Statutes, ch. 170, sec. 18, it is provided that “no judge shall make or draft any will for any other person, and all wills so made or drawn after July 16,1864, shall be void ; ” and by sec. 19, “ no judge shall act as counsel or advocate in any business in, or which may be brought into, the court of which he is judge, or receive or take any fee or compensation in such business or proceeding,” &c.; sec. 21, “ any judge who shall violate any of the provisions of this chapter shall be fined not less than fifty nor more than five hundred dollars, one half to the use of the person complaining of such violation.” In case of making a will, both parties are visited with a penalty — the judge who makes it to a criminal indictment and fine, and the party who procures him to make it, or for whom it is thus made, being punished by having the will declared void.
Sec. 9, ch. 170, General Statutes, provides that “nojudge [of probate] shall act as such in the settlement of any estate wherein lie is interested as heir or legatee, executor or administrator, or as guardian
Here the statute is explicit, that if the judge of probate is interested in certain ways he shall not act as judge. In such cases he has and can have no jurisdiction, and his acts in cases of that kind would be absolutely void. So in the other case, where the judge is made the umpire in the first instance to settle the question whether or not he is disqualified, by reason of interest or otherwise, to sit: after he has settled that question affirmatively, and caused the record thereof to be made, and adjourned his court to some convenient time and place, that is the end of his jurisdiction, and the law from that time forth vests the jurisdiction in the judge of an adjoining county. If, after such adjournment, the judge who had previously decided that he was interested so as to disqualify him to sit, should undertake to act as judge in the case, his acts would be absolutely null and void.
Sec. 8, ch. 192, General Statutes, which is referred to by the defendant’s counsel, and which provides that “ no justice shall sit in any case in which he has been concerned as party or attorney, or in any appeal in which he has acted as judge in the court below, or act as attorney, &c., in any matter pending or which may come before the court for adjudication,” is not applicable to this case, as will be seen by an examination of the whole chapter, but refers solely to justices of the supreme judicial court. Sec. 8 of ch. 199 provides that “ no person shall act as attorney in any cause in which he has acted as judge.”
We find no statute in this State that expressly provides that the acts of a judge of probate, in a cause in which he has acted as counsel, shall be void, or that he shall not act or sit as judge in such a case. The statutes seem to be levelled, not at his acts as the judge of probate, but against his improperly acting at the same time as counsel in the very causes which it is made his duty to hear and determine as judge. This is the precise point settled in Moses v. Julian, supra. As no statute has made these acts as judge void, or in terms expressly prohibited them, they are properly to be held not void, but, as at common law, only voidable, but in this case good and valid until appealed from, like an erroneous judgment — valid until reversed upon error. Gorrill v. Whittier, 3 N. H. 265; Bryant v. Allen, 6 N. H. 116; Judge of Probate v. Tillotson, 6 N. H. 297.
The objection in this case, then, comes too late, and must be considered as waived. It does not distinctly appear when the defendant first knew of the fact that the judge of probate of Hillsborough county was acting as counsel for this plaintiff, but the case shows that he thus appeared before the commissioner of said Proctor’s estate and presented the claim. A hearing was then had, and an appeal from that decision taken and entered here in this court, and has been continued from term
II. Had the probate court power to appoint an administrator in New Hampshire? Sec. 6, chap. 170, General Statutes, provides that “ probate of the will and granting of administration on the estate of any person deceased shall belong to the judge of probate for the county in which such person was last an inhabitant; but if such person was not an inhabitant of this State, the same shall belong to the judge for any county in which such person had estate.” No one claims that Shat-tuck, the plaintiff’s intestate, was an inhabitant of this State. But Proctor was a resident of this county, with his property here, and his administrator here, and the plaintiff was a creditor of Shattuck; and it was claimed, and the jury have found, that Proctor had in his possession in. this county property or estate of said Shattuck; and if he did not have it at the time of Shattuck’s death, it is claimed that he fraudulently obtained it of his administrator, Levi Stearns, in Massachusetts, and that it still belonged to the estate of said Shattuck, and as such is now in the hands of Wright, the administrator of Proctor’s estate.
This was property that Shattuck’s creditors were entitled to, and this plaintiff, being a creditor of Shattuck, and finding that property in this county, might properly be appointed administrator of such estate in this county. Levi Stearns, the administrator of Shattuck in Massachusetts, may not have chosen to come into this jurisdiction to pursue this property; or if he were disposed to come, but a citizen of our State, being a creditor of said Shattuck, chose to avail himself of that chance to secure his debt, we see no objection to his being appointed under the statute of this State with a view to aid our own citizens in collecting their debts from property within this jurisdiction belonging to the estates of their debtors. We apprehend that this is a very common practice in this State, and we see no objection to it under the provisions of our statute. If there were any doubt upon that point, it would at least be included among the common law powers of the court, which it has always held and exercised in this State. Kimball v. Fisk, 39 N. H. 120; Morgan v. Dodge, 44 N. H. 258.
III. Did the court err in allowing the plaintiff to testify at all ? We think not, since it was to the contents of material papers that he testified, which papers the defendant’s counsel had in their possession and refused to produce. It is clearly a case where injustice might have been done without such testimony; and by General Statutes, ch. 209, secs. 16, 17, where one party is an executor or administrator, the court, in its discretion, may permit the other party to testify, when it is made to appear that injustice may be done without the testimony of such party. The witness was confined to facts that had taken place
IV. Levi Stearns is not a party to this suit, nor is he interested in it until the claim of this plaintiff is paid. If any balance should come into his hands in the end, he would hold it for the benefit of the creditors of Shattuck’s estate; so that he is not the real party any more than he is the nominal one.
V. His testimony as to the payment of $ 100 to the Townsend bank was the best evidence of that fact. The account which he rendered in the probate court of Massachusetts might have been competent evidence for the defendant to have used to contradict his statement as a witness, if it would have contradicted him in that particular, but it would not alone have been competent affirmative evidence for him to have offered. The payment of this money was a fact within his own knowledge, and his testimony on the point was not only competent, but the best evidence in the case.
VI. We see no reason why the question was not properly submitted to the jury, to find whether this claim of the plaintiff' was or was not presented to the commissioner on Proctor’s estate. The case shows that there was some evidence tending to prove that a certain claim was presented to said commissioner. The jury must judge of the sufficiency of that evidence, and find whether that claim was presented to the commissioner or not. Then there was an objection that the claim set forth in the declaration was not the same presented to the commissioner,, and that the claim referred to in the evidence was not the same as that in the declaration; and we see no objection to submitting the whole question to the jury, whether there was any claim presented to the commissioner, and if so, what that claim was, or whether or not it was the one which the plaintiff now seeks to recover.
VII. Since the former opinion in this case was delivered (50 N. H. 293), the specification has not only been amended, but the declaration also, by adding counts alleging promises to pay the plaintiff as administrator, according to the suggestion in that opinion, — page 295. The objection of defendant’s counsel, that this suit could only be maintained upon the count for money had and received, and that there is no evidence in the case showing money or its equivalent in the hands of Proctor or his administrator, for the use of Sliattuck or his administrator, is sufficiently answered, we think, in the former opinion in this case, — page 296. There is no evidence in the case that the statute of limitations was interposed or pleaded to this claim by’anybody, and that point is abandoned in the argument; and we have not, therefore, considered that objection.
The motion for a nonsuit was properly overruled, as were the exceptions to the other rulings of the court, and there must be
Judgment on the verdict.