Storrs, J.
The question arising on the demurrer in this case, is, whether the executors on the estate of Jesse Richards, have been guilty of the alleged breach of their bond to the judge of probate, in not procuring an order for the distribution or payment of the amount clue on the notes executed by one of the executors to the said Jesse. It appears, that at the decease of said Jesse, one of his executors was indebted to him on two promissory notes, executed by said executor to [316]*316him in his life-time, each for the sum of five hundred dollars, one being payable in one year after his death, and the other in one year after the death of Clarissa, then his wife and now his widow;-that said notes came into the hands of the executors, at his decease;—and that the first of said notes became due long before the commencement of this suit. As it does not appear, that there is any defence against this note, or that it was not paid by the maker, or that he is insolvent, the amount due on it is to be considered and treated as so much money in the hands of himself and his co-executor, from the time when it became payable. It stands on the same ground as if it had been due from a third person, and paid to the executors, or to one of them, which would have the same effect as to those to whom the executors are bound to account. This being the case, and it being admitted that a reasonable time has elapsed for that purpose, it was the duty of the executors, unless excused therefrom, to make an exhibition of the amount so in their hands to the court of probate, and to apply to that court for an order to distribute it, or pay it over to those entitled to it, who, in this case, were the heirs, or for an authority to retain it in their hands for other proper purposes, which, it is conceded, has not been done. Such an exhibition was requisite, in order to lay the foundation for such further orders and proceedings in that court as were necessary for the purpose of completing the settlement of the estate. Otherwise, such settlement might never be made, or might be procrastinated indefinitely by the executors, and neither the judge of probate, nor any person interested, have any knowledge of the situation of the estate, or indeed the means of bringing the settlement of it to a close. The correct and speedy settlement of estates, requires that it should be done in a regular and orderly course; which can only be accomplished, when a foundation is properly laid for each successive order of the court of probate, by the steps which should precede it; and the proceedings of that court cannot be regular, orderly or intelligible, without full information from time to time of the situation of the estate. It is therefore most reasonable, that every change in its situation, which may require the further orders of the court, should be promptly disclosed. In the present, case, the executors, by not presenting to the court of probate an account of these [317]*317moneys in their hands, and having it adjusted, have prevented an order for distributing or paying over the same to the heirs from being made, by which they have been wrongfully kept out of their distributive portions of the estate.
It is claimed, however, by the defendants, that the assets in the hands of the executors being money, and not ordinary personal chattels, it was not competent for the court of probate to make such an order; and that, therefore, they are, in this respect, faultless. It is also insisted, that such an order is unnecessary, where the assets are of this description, because it is the duty of the executors to pay over the money to the heirs, without any direction for that purpose, according to their respective proportions, on a demand made by them; and that such demand is necessary, before such duty devolves on the executors. It is true, that when an estate is ready for distribution, the statute prescribes, that it shall be made by distributors to be appointed for that purpose. This provision, we suppose, was intended to apply to those cases only, where the property to be distributed, should consist, not of money, but of other property of which it would be necessary to determine the value, and which it is of course a part of the business of the distributors to do, in order properly to discharge their duty. This would not be the case with money, which has a fixed legal value: nothing is to be done with it, but to pay it over to those entitled; and the appointment of persons to do this, which may be as well, and indeed after all must be, done by the executors, would be not only a useless ceremony, but attended with unnecessary delay and expense. A just construction of the statute, therefore, does not require this course to be taken. But it by no means follows, that the court of probate has no power to order the distribution or payment of money in the hands of executors, to the persons entitled; and, we think, that such is not the case. Although there is no express provision of law requiring an order for the distribution or paying over of property of this description, the same reasons exist for such order as in the case of other property remaining in the hands of the executors after an adjustment of his administration account; and without it, the records of the court of probate would not show a legal settlement of the estate, in the one case, more than in the other. The bond, moreover, prescribed by the statute to be given, [318]*318by an executor, to the judge of probate, is conditioned, among other things, that he "shall render a just and true account of his administration; and, that all the rest and residue of the estate, which shall be remaining upon the executor’s account, the same being first examined and allowed by the court of probate, he shall deliver and pay over, as the said court shall appoint.” These terms apply precisely to moneys remaining in the executor’s hands, as well as to other personal property, and implies, that the court of probate not only has power to order them to be paid over to those entitled, but that this is the proper course. The residue of the estate remaining after the settlement of the administration account, is what is to be distributed or paid over to those ultimately entitled to it. What that residue is, can only be ascertained, by a settlement of such account; and as to what so remains, of whatever it may consist, the regular course is, for the court of probate to order it to be disposed of as the law requires. As remarked by Ch. J. Hosmer, in Edmond v. Canfield, 8 Conn. R. 90. “This instrument, [the bond,] in connexion with the general law on the subject, shows decisively the duty of the administrator, and the jurisdiction of the court of probate. At the commencement of his official existence, the administrator stipulates with the court, in conformity with the express requisition of the law, that he will render a just and true account of his administration; and this he submits to the examination and adjudication of the judge. Such an administration account, sanctioned by the decision of the court, is necessarily precedent to the distribution of the deceased’s estate. Every item in every administration account, must be examined, and adjudicated upon, by the court of probate. Nor is this matter of form, but of substance. Otherwise, the records of the court, which ought to be of incontroulable verity, would afford no evidence of the just and legal settlement of an estate;" and he adds, “No distribution of an estate can be made, until the administration account is allowed by the judge; for until this is done, the surplus to be distributed is unknown.”
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Storrs, J.
The question arising on the demurrer in this case, is, whether the executors on the estate of Jesse Richards, have been guilty of the alleged breach of their bond to the judge of probate, in not procuring an order for the distribution or payment of the amount clue on the notes executed by one of the executors to the said Jesse. It appears, that at the decease of said Jesse, one of his executors was indebted to him on two promissory notes, executed by said executor to [316]*316him in his life-time, each for the sum of five hundred dollars, one being payable in one year after his death, and the other in one year after the death of Clarissa, then his wife and now his widow;-that said notes came into the hands of the executors, at his decease;—and that the first of said notes became due long before the commencement of this suit. As it does not appear, that there is any defence against this note, or that it was not paid by the maker, or that he is insolvent, the amount due on it is to be considered and treated as so much money in the hands of himself and his co-executor, from the time when it became payable. It stands on the same ground as if it had been due from a third person, and paid to the executors, or to one of them, which would have the same effect as to those to whom the executors are bound to account. This being the case, and it being admitted that a reasonable time has elapsed for that purpose, it was the duty of the executors, unless excused therefrom, to make an exhibition of the amount so in their hands to the court of probate, and to apply to that court for an order to distribute it, or pay it over to those entitled to it, who, in this case, were the heirs, or for an authority to retain it in their hands for other proper purposes, which, it is conceded, has not been done. Such an exhibition was requisite, in order to lay the foundation for such further orders and proceedings in that court as were necessary for the purpose of completing the settlement of the estate. Otherwise, such settlement might never be made, or might be procrastinated indefinitely by the executors, and neither the judge of probate, nor any person interested, have any knowledge of the situation of the estate, or indeed the means of bringing the settlement of it to a close. The correct and speedy settlement of estates, requires that it should be done in a regular and orderly course; which can only be accomplished, when a foundation is properly laid for each successive order of the court of probate, by the steps which should precede it; and the proceedings of that court cannot be regular, orderly or intelligible, without full information from time to time of the situation of the estate. It is therefore most reasonable, that every change in its situation, which may require the further orders of the court, should be promptly disclosed. In the present, case, the executors, by not presenting to the court of probate an account of these [317]*317moneys in their hands, and having it adjusted, have prevented an order for distributing or paying over the same to the heirs from being made, by which they have been wrongfully kept out of their distributive portions of the estate.
It is claimed, however, by the defendants, that the assets in the hands of the executors being money, and not ordinary personal chattels, it was not competent for the court of probate to make such an order; and that, therefore, they are, in this respect, faultless. It is also insisted, that such an order is unnecessary, where the assets are of this description, because it is the duty of the executors to pay over the money to the heirs, without any direction for that purpose, according to their respective proportions, on a demand made by them; and that such demand is necessary, before such duty devolves on the executors. It is true, that when an estate is ready for distribution, the statute prescribes, that it shall be made by distributors to be appointed for that purpose. This provision, we suppose, was intended to apply to those cases only, where the property to be distributed, should consist, not of money, but of other property of which it would be necessary to determine the value, and which it is of course a part of the business of the distributors to do, in order properly to discharge their duty. This would not be the case with money, which has a fixed legal value: nothing is to be done with it, but to pay it over to those entitled; and the appointment of persons to do this, which may be as well, and indeed after all must be, done by the executors, would be not only a useless ceremony, but attended with unnecessary delay and expense. A just construction of the statute, therefore, does not require this course to be taken. But it by no means follows, that the court of probate has no power to order the distribution or payment of money in the hands of executors, to the persons entitled; and, we think, that such is not the case. Although there is no express provision of law requiring an order for the distribution or paying over of property of this description, the same reasons exist for such order as in the case of other property remaining in the hands of the executors after an adjustment of his administration account; and without it, the records of the court of probate would not show a legal settlement of the estate, in the one case, more than in the other. The bond, moreover, prescribed by the statute to be given, [318]*318by an executor, to the judge of probate, is conditioned, among other things, that he "shall render a just and true account of his administration; and, that all the rest and residue of the estate, which shall be remaining upon the executor’s account, the same being first examined and allowed by the court of probate, he shall deliver and pay over, as the said court shall appoint.” These terms apply precisely to moneys remaining in the executor’s hands, as well as to other personal property, and implies, that the court of probate not only has power to order them to be paid over to those entitled, but that this is the proper course. The residue of the estate remaining after the settlement of the administration account, is what is to be distributed or paid over to those ultimately entitled to it. What that residue is, can only be ascertained, by a settlement of such account; and as to what so remains, of whatever it may consist, the regular course is, for the court of probate to order it to be disposed of as the law requires. As remarked by Ch. J. Hosmer, in Edmond v. Canfield, 8 Conn. R. 90. “This instrument, [the bond,] in connexion with the general law on the subject, shows decisively the duty of the administrator, and the jurisdiction of the court of probate. At the commencement of his official existence, the administrator stipulates with the court, in conformity with the express requisition of the law, that he will render a just and true account of his administration; and this he submits to the examination and adjudication of the judge. Such an administration account, sanctioned by the decision of the court, is necessarily precedent to the distribution of the deceased’s estate. Every item in every administration account, must be examined, and adjudicated upon, by the court of probate. Nor is this matter of form, but of substance. Otherwise, the records of the court, which ought to be of incontroulable verity, would afford no evidence of the just and legal settlement of an estate;" and he adds, “No distribution of an estate can be made, until the administration account is allowed by the judge; for until this is done, the surplus to be distributed is unknown.”
We think, therefore, that it was incumbent on the executors, in this case, to present to the court of probate, an account of the moneys in question in their hands; to have that account adjusted, by the court; and to obtain an order that it be paid [319]*319over to the heirs, or an authority to retain it, for some proper purpose.
Whether the executors would be protected in a suit on their bond, where the breach alleged was an omission to obtain such an order, if they should, after a settlement of their administration account, without an order for that purpose, pay over to the heirs the amount to which they would be entitled, either with or without a discharge from them therefor, and it should afterwards be sanctioned by the court of probate, either by an allowance of it in the administration account or otherwise, is a question which it is unnecessary to determine. In the present case, no such payment has been made. Without such sanction, it is quite clear, that the executors would have no defence whatever against such breach. They would have acted without the order, or subsequent approval, by the court. This shows, that the executors, in such case, would pay over, at the peril of its being unavailing to them, as a perfect compliance with their bond.
It is said, that if an order be requisite to pay over money to heirs, it imposes on the court of probate the duty of ascertaining and designating who such heirs are; and that this is not within the competency of that court; and that the order might be to pay to a person who is not the legal heir, and so the true heir be injured. It is not necessary to determine, whether the order itself must designate the heirs by name; or whether the inquiry as to who they are, more properly arises when the executor makes his return of his doings under the order. But, we think, that it is appropriately within the jurisdiction of that court to determine, in one of these forms, who the heirs are, for the particular purpose of completing the settlement of the estate, and in order that the executor may be protected. The real heirs cannot be injured, by this course: since if, in the one case, the heirs are wrongly designated in the order, an appeal lies from such order; or if, in the other, the return states a payment to those who are not the true heirs, an appeal lies from its acceptance. It has been held, that it is not competent for the judge of probate to determine who are the creditors of an estate, or the amount of their debts, in order to govern the future action of an administrator or executor, because the direct jurisdiction over these subjects appertains to other tribunals; in case of a solvent [320]*320estate, to the ordinary courts of common law; and in that of an insolvent estate, to the commissioners: and yet there is no question that the court of probate, in the settlement of the administration account, has jurisdiction to decide on the validity of the claims of creditors paid by the administrator or executor, so far as it respects the allowance of such payments in his account. Edmond v. Canfield, 8 Conn. R. 87.
It being the duty of the executors in this case to render an account to the probate court of these moneys in their hands, and to obtain an order for paying the same to the heirs, it was not necessary, prior to those steps being taken, for the heirs to make a demand of the executors for their portions of it. Until the adjustment of such account, it would be obviously impossible for the heirs to know what would remain; and therefore, the amount to which they would be entitled; and until such order, a demand would be ineffectual, because it would not be the duty of the executors to pay. After such an order should be made, we are of opinion, that the executors would not be liable, without a demand, for not paying over to the heirs; and that their relation to the heirs would be that of a mere trustee, and not that of debtors, which they sustain to the creditors of the estate, by whom a demand has been adjudged to be unnecessary.
There is no foundation for the claim of the defendants, that in order to render the executors liable for not applying for an order to pay over the moneys to the heirs, a request, by them to make such application, was necessary, since it was the duty of the executors on their part to take all such steps, and procure all such orders, as were necessary to complete the settlement of the estate; and it was not incumbent on the heirs to move them to the performance of that duty, by any request.
The defendants, in the last place, claim, that the breach insisted on, is improperly and insufficiently alleged, because it states, that the executors neglected to procure an order for the “distribution and division" of the moneys in their hands, and not for the paying over of said moneys to the heirs. Considering the subject matter of the averment, viz. cash, we think, that, on a general demurrer, the breach is sufficiently alleged; and that the import of it is at least substantially equivalent to what the defendants require.
There having been, therefore, a breach of the bond, the [321]*321remaining question respects the validity of the excuse set up by the defendants, which is, that the said moneys are retained, by the executors, to pay a debt due by the testator to a foreign creditor. Waiving a consideration of the objections made by the plaintiff, that that debt is not sufficiently described, and also, that the rejoinder is a departure from the plea, we are of opinion, that the excuse alleged, is clearly insufficient. If there was a just debt due to such creditor, and it was legally presented, it was the duty of the executors to pay it; and it would have been a proper charge in their administration account, where it is presumable that it would have been allowed; or if, in the judgment of the court of probate, any sufficient reason existed why the money should be retained, and not immediately applied to the payment of such debt, the executors might, on a representation of the facts, have obtained an authority from that court for so retaining it in their hands, which would have protected them in so doing. This was a matter exclusively within the jurisdiction of the court of probate, to which it should have been submitted. But that the executors, without the authority or knowledge of that court, might retain these moneys in their hands indefinitely, and thus arrest the action of that court, and the settlement of the estate, and, when sued on their bond, draw into inquiry matters of excuse properly determinable only in that tribunal, is wholly inadmissible. The effect of such a course, would be, to take the cognizance of the subject from the court to which it by law exclusively belongs, and to transfer it elsewhere.
The rejoinder, therefore, is insufficient; and the superior court should be so advised.
It should be added, that the court are not unanimous in this result; and that it is not intended to decide whether, or to what extent, the defendants may avail themselves of any of the facts alleged by them, in reduction of the damages to be assessed to the plaintiff.
In this opinion, Williams, Ch. J., and Waite and Hinman, Js., concurred.
Church, J. dissented.
Rejoinder insufficient.