4 Vt. 256 | Vt. | 1832
It is a matter of regret,that an administrator should be several years settling an estate, .without keeping an accurate daily account of his services. The sum charged for services is objected to. The commissioner reports, that no regular account was kept from day today; but the administrator made up the account chiefly from memory, when he was about to exhibit it to the Court of probate for allowance. This is too loose for allowance, without support from some other source than his memory. Yet the commissioner has reported such supporting facts, and the particular controversies reported show "the estate in a situation so embarrassed, and requiring so much time and attention •to settle it, we have concluded-to affirm the r-eport upon this item of the-acconnt. We also affirm the report upon some-small items, which may not be exactly as they should be, but the commissioner states them-to ha-ve been all in good faith. We also affirmthe account of sales of personal estate, where the administrator was the highest bidder, and becninethe purchaser; there being no ground, from the facts reported, to believe the estate injured by his bids. But we charge him with five dollars he gained in selling a sleigh for so much more than his bid (or it. We also disallowthe sum-of $6,-71, paid Mr. Underwood for attending before the court of probate on the rendition of his account, because this was rendered necessary only by bis want of regularity and care in-keeping hisae--counts. The commissioner has allowed the administrator his expenditures in several suits,in which there-was a recovery against him, and which are of considerable amount. These were objected to before the commissioner, and the objections again urged before this Court. We affirm the decision, of the commissioner in all these except one, on the ground, that no blame seems attached t®
It appears by the report, “ that said Pettes, Tarbell & Co. presented to the commissioners, appointed on the estate of William Eames, their account against said estate, and the administrator presented in offset the claims of said Eames against Pettes, Tarbell & Co.; and the commissioners found, and reported, a balance in favor of said estate against said Pettes, Tarbell & Co. of $4,15, which claim, together with the one first above mentioned, and one other, in favor of the administrator, in his private right, were, by the administrator, banded to Abel Underwood, Esq. of Wells river for collection ; that said Underwood, finding a Mr. Gale, a resident at Wells river, was going to Rockingham, the residence of Pettes, one of said firm, made writ's on each of said claims, together with one other in which the Administrator had no interest, all justice suits, and handed them to said Gale, with directions to call on said Pettes, and, if he would pay said claims and the additional sum.of five dollars for costs, the said Gale was at-liberty to discharge said suits; but, in case Pettes declined, tberr to- hand the writs- to> an officer to be served. Gale called on Pet-tes, who-deelioed settling the other demands, but offered to pay G-ale the balance found bysaid commissioners, being the claim on which this suit was brought. But it did not appear whether he offered to pay any costs or not. Gale declined receiving pay on-one of said demands, unless the whole were settled ; and the writ was served on Pettes returnable at Newbury. The declaration was in assumpsit, containing one count for $4,15, as a balance found due by the commissioners, to which was added a general count for goods sold and delivered. On the trial before the magistrate, the attorney of Woods offered in evidence, in support of his claim, a transcript of said Eames’ account against Pettes, Tarbell & Co., on the back of which was a certificate, subscribed by the commissioners of said estate, of the examination and allowance of said account, and that a balance was found due said est ate of the sum of $4,15. To the admission of this paper, the attorney for the defendants objected, on the ground that it did not furnish the legal proof of the- allowance by said commissioners; which objection was sustained by the court, and the paper rejected’. The attorney for the plaintiff then resorted to bis second count, and offered the original account of said Eames in support thereof, to which the defendants pleaded their account in offset. The plaintiff objected to the allowance of said offset, on the
With regard to this claim, which amounts to something worthy of notice, there seems to be an incorrect procedure in the outset. The sending by Gale, and connecting this with several other demands, and sending writs on all of them, with directions to deliver them all to an officer to be served, unless Tarbell would pay them all, and a sum in gross as costs on them all, was leaving no discretion in Gale to receive the money on this, when offered by Tarbell, unless he paid the whole. The report says, it did not appear whether Tarbell offered to pay the cost in this suit or not. This is not very material, as it would have done no good for him to offer it; for Gale had no right to receive it. Moreover, that had no effect upon the suit, or upon the expenditures in the suit, now claimed by the administrator. The recovery by Tarbell & Co., was upon entirely different grounds from that. It was said in argument, that Gale’s instructions were the work of the attorney. For this purpose the doings of the attorney were the same as if done by Woods himself. As Woods owned one or two others of the demands, probably his views were known to his attorney ; but that is an affair between them, and could not affect the suit. That suit was. unnecessarily and improperly brought btfore the justice for trial. Again, when the plaintiff was beaten before the
The commissioner has allowed the sum of ninety dollars against the administrator, as money which he might have realized in. the sale of real estate,, under bis licence from the probate court above what it was sold for. The circumstances were these, as reported by him : The real estate consisted of a store at Wells river, in Newbury, appraised “ by the appraisers, appointed to appraise Uames’ estate, at the sum of six hundred and fifty eight dollars. The administrator hascredited the estate the sum of $410,00, as the avails of said estate. The appellants contend, that the administrator should be charged with the full value of said real estate,. because, as they say, he had a secret bargain with the auc-. tioneer for him to bid it off for their joint benefit; and, as they say, it was sold at a sacrifice in consequence. The facts áre as follow : the administrator caused due notice of the sale of the real estate to be given, by posting up notifications in the public places in the town, and in the adjoining towns, about one month before the sale, which was advertised to take place on the first, of December, 1829 ; and,.on that day, the administrator caused the real estate to be offered for sale at public vendue, the terms cash in thirty days from the sale. The administrator employed Roswell Shurtleff as auctioneer, in the sale of said estate. The said store was offered for sale in the forenoon of said day ; the administrator having advertised personal property of his own, in which the estate had. no interest, to be sold at the same time ; and there was a considerable collection of people present at the sale, which took place in the same building then, offered to be sold. The administrator bad a private understanding with one Walter Robin, to bid for him, the administrator, a sum not exceeding $375, or $400. Robin bid several times. The store stood at ,$350 ; when an adjournment was had for about two hours ; and it was then again offered* Messrs. Shedd, White and Hutchins, all living at Wells
We have dwelt upon this disclosure once and again, and find ourselves unable to make any thing of it more favorable to the administrator, than the commissioner has done. The property went at great discount from its cost, and from its appraised value. And it appears certain, that five hundred dollars might have been obtained for it. We have endeavored to give the administrator all reasonable benefit from his being ignorant, that there were those present, who would give that sum. But, when we see, that he had a person by, bidding for him ; that he was interested in the final bid, when it was struck off; that he does not appear ever to have offered to sell at private sale, and that he announced, during the bidding, and when there was little orno opportunity to examine title, that he only sold such title as the deceased had at his death, we think he ought to be charged with the ninety dollars reported against him.
The commissioner has reported a demand against Dorman Toting of $46,91, which he treats as not collected, and leaves to come in at a future settlement. But the report shows, that this
The commissioner has reported the sum of $195,05 collected by the administrator, after his appointment in this state, and before he was appointed administrator of the same estate in New-Hampshire ; also a further sum of fifty-four dollars and ninety-two cents, collected of people in New-Hampshire, since his said appointment there, which was December 16th, 1828. Neither of which sums have been inventoried, or in any way accounted for in New-Hampshire. The administrator seems not to have attempted to show, that any debts have come against the estate of the deceased in New-Hampshire. Under these circumstances, and considering the length of time since both administrations have been pending, and no account rendered in New-Hampshire of those monies received for debts there, we make him debtor for them in his present account. After he shall have closed his administration in New-Hampshire, he must account here for the balance of monies received there. If no debts come against the estate there, he must account for the whole here. More than three years have elapsed, since that administration has been pending; yet it is not closed, nor is there any reason shown, why it is not closed, nor any reason shown, why he should not account for the money here, without the ceremony of its passing the probate office there. And he has rendered no account of it there ; not even an inventory to show, that lie had it in his possession. Moreover, his accounting here secures him against all persons, except creditors living in New-Hampshire. He tells of no such creditors ; and the creditors here have good right to claim their dividend of this money. These sums must be added to the fund in the hands oflhe administrator.
We have considered the subject of interest also ; and have observed the sums and dates of the accounts ; and, to avoid mistakes, have prepared a plot to deliver to the clerk. The principle we adopt is this : We cast interest on the balance in his hands on the first of January, 1829, till the 30th of March, 1830, the time when he rendered his account, upon tvhich this appeal was taken. We cast from January, 1829, because he had been administrator more than two years, and this balance had then become money in his hands. We find considerable sums credited
With the alterations now suggested, and the addition of interest, now directed, the report of the commissioner is accepted and confirmed ; and directions must go to the probate court to strike a dividend of the sum thus found and established in the administrator’s hands.