Court of Probate of Glocester v. Eddy and Others

8 R.I. 508

• Court: Supreme Court of Rhode Island
• Decided: October 6, 1867
• Status: Published

Opinion

The opinion of the Court was read by

Bratton, J.

This suit is brought upon the bond executed by the defendant, as administrator on the estate of Amasa A. Eddy, deceased. The parties pleaded to issue. The breach set out by the plaintiff was, that the defendant, though he had been cited by the Court of Probate to account, had neglected and refused so to do, to which the defendant replied, that he had not refused and neglected to account with the said Court of Probate, and upon this, issue was joined. This was the only issue to the jury, and their only inquiry was, did the defendant account ? It was not necessary, on this issue, to offer the bond in evidence, or to produce it or any evidence in relation to it. The pleading of defendant admits the validity and execution of the bond, and the ability of the plaintiff to sue, and rests his defence, so far as the only issue is concerned, upon the fact that he did account. Whether the bond was originally approved by the Court of Probate, is no part of this issue. The ruling of the Court therefore, that it was unnecessary for the plaintiffs to prove such approval, which is here made a ground for new trial, was not open to objection.

Upon the trial of this issue before the jury, the plaintiff put in evidence tbat tbe defendant was, on tbe second day of October, 1862, cited by tbe Court of Probate, to present bis account of administration on said estate, on tbe lltb day of said October, and tbat tbe defendant did not appear before said Court in compliance witb said citation, to render any such account. Tbis evidence was relied upon by tbe plaintiffs to prove tbe breach assigned by them in tbe pleading. It was in evidence on tbe part of tbe defendant, upon wbicb he relied to sustain bis defence, tbat, after tbis failure to account, viz.: on tbe lltb day of October, 1862, tbe Court of Probate ordered tbe defendant to be cited to appear on tbe second Saturday of tbe following January, to render bis account. Still later, on tbe 18th day of December, 1862, they ordered tbe defendant to be cited to appear before said Court, on tbe 13th day of January, 1863, to show cause why be bad neglected to render bis account.

Tbat on tbe 14th day of February, bis account wbicb be bad filed in tbe office of tbe clerk of said court, on tbe 19th day of January, preceding, was received by said court and continued for consideration to their meeting in March, and notice thereon ordered to be given, and at their meeting in March, was indefinitely postponed, tbe same being, by said Court, deemed imperfect and unsatisfactory.

Tbat afterwards, on tbe 2d day of January, 1864, be was, by order of said Court, cited to appear -on tbe second Saturday of said month, and show cause why be bad neglected to settle an account; tbat be appeared at said time, and offered reasons wbicb tbe Court deemed unsatisfactory ; tbat on tbe lltb day of February, 1864, said Court received bis account wbicb bad been ■filed witb tbe clerk on tbe 19th day of January, preceding, and referred it for consideration to a meeting to be held in March, following, and made another further reference to tbe 3d Monday of March, and have made no further order or decree concerning tbe same, and no proceeding has been bad by defendant thereon.

Upon tbis evidence, tbe defendant asked tbe Court to instruct tbe jury, tbat tbe Court of Probate, by before recited acts, orders, &c., bad waived tbis breach (if any there were) of tbe said bond, in not accounting on tbe said 11th day of October, 1862, and tbat therefore tbe plaintiffs were not entitled to recover. Tbe refusal of tbe judge to give sucb instruction, and on tbe contrary instructing them, tbat it was not a waiver in law, is made a ground for a new trial.

There was no account settled by tbe defendant with tbe Court of Probate. There was no account ever presented to tbe Court, which seemed to have commended itself to the Court as an account of administration. The first was postponed indefinitely as unsatisfactory and imperfect. The second was never acted upon, except first to refer for consideration to another time, and finally ceased to act upon at all, defendant as well as tbe Court suffering it to pass from their notice.

An actual settlement and allowance of an account by the Court of Probate, has been adjudged to be waiver of a prior breach, in not accounting. We have been furnished with such as authority. But our request for one which bolds tbat any action of the Court, less than this, is in law, a waiver-, has not been answered, and we do not find sucb a case. Tbe matters put in evidence by tbe defendant, tbe citation to account though not complied with at tbe time, the presentation of an account at a later period, tbe partial consideration given the one or the other, may be strong evidence for tbe consideration of the jury, in determining whether there is in fact any intent to overlook tbe breach already made in tbe condition of tbe bond, and give up all idea of suit therefor. Tbe question is one of fact for tbe jury, and not one of law for tbe court to determine, and so it was left by tbe learned judge who beard tbe cause, and we do not feel warranted in saying tbat there was any error in the instruction he gave, or in refusing tbat which was asked of him, or tbat it furnished any ground for a new trial.

The judge was asked to instruct tbe jury that tbe defendant, by rendering an account to tbe Court of Probate, in January, 1863, which was before tbe said court in February, 1863, and by rendering bis account to said court in January, 1864, wbieb was received and referred for consideration before any suit on tbe bond, did thereby comply with tbe condition of said bond, and with tbe law relative to rendering accounts when cited. This instruction was refused.

The issue to be tried was, simply, whether the defendant accounted on the 11th day of October, 1862, which the plaintiff alleges he neglected to do, and assigns this neglect as a breach of the bond. This allegation is traversed by denying that he did neglect thus to account. Upon the trial of this issue, we cannot hold that the subsequent proceedings as above set forth are in law conclusive, even if admissible, as evidence of compliance. "We cannot therefore sustain this exception. The motion for new trial is therefore overruled.