Hills v. Baker

59 N.H. 514

• Court: Supreme Court of New Hampshire
• Decided: June 5, 1880
• Status: Published

Opinion

Smith, J.

Whether the executor was entitled to notice of the decree of distribution (G. L., c. 192, s. 2), it is not important to inquire, for the appeal will not be entertained if it appear that no injustice has been done to him by the decree. Ela v. Goss, 20 N. H. 53.

The only person interested in the further administration of the estate is the defendant, who desires nothing further done. As whatever further administration is had must be for her benefit and at her expense, her request to the plaintiff to resign was reasonable. The claim of Bartlett has been released, and the uncollected claims due the estate are small and apparently doubtfuL. It is unjust to the defendant to subject her to the risk of costs and expenses which will evidently be wholly disproportionate to the amounts to be realized from the collection of these claims. There is no reasonable certainty that anything will be collected. Inasmuch as the plaintiff commenced the suit upon the judgment after the defendant’s request to him to resign, and after the decree of distribution was made, and after'this appeal was taken, we think his costs and expenses for prosecuting the suit should not be a charge upon the balance of $95.29, but should be paid from the proceeds of the suit if anything is collected.

As no injustice was done the plaintiff by the decree, the decree of the probate court is affirmed, and the appeal dismissed with costs.

Appeal dismissed.

All concurred.