The opinion of the court was delivered by
Redeiei/d, J.
The principal question in this case is, whether the probate court have any and if any what discretion, in regard to accepting, or rejecting, the report of commissioners on estates represented insolvent. We think it could scarcely' be said, that that court has no discretion in the matter. It is indeed admitted in argument, by the counsel for the appellant, that the probate court might reject the report of commissioners, for defects apparent on the face of the report. And this concession, which it would seem the counsel felt compelled to make, seems to us equivalent to giving that court a general, but not perhaps an unlimited, discretion in the matter. If we allow any discretion whatever to the probate court, and it seems to us we must, it seems impossible to limit it to matters apparent, upon the report.
It might be shown, that only one of the commissioners sat in the hearing of the claims and offsets brought before them, and that this commissioner had used the name of the other commissioners, in making the report, without their consent. And the other two commissioners might have held separate sessions, and made a counter report. It might be shown, that the proper notices had not been given, and it can scarcely be supposed, that the legislature intended to have the return of the' commissioners, in regard to notice, any [463]*463thing more than prima facie evidence. Many other cases might be supposed, where it is evident some discretion must be supposed to reside in the probate court.
Many other very conclusive reasons might, as it seems to us, be drawn, from the analogous appointments in other courts, in favor of some discretion in the court of probate, in regard to accepting their report. We do not perceive any essential difference between the case before us and that of the commissioners, or appraisers of damages,1 or committees of distribution, appointed by the several courts, to whom such power is given, where the report of the commission is not by law subject to a general revision, but, when accepted, is conclusive of the matter. The report of commissioners to appraise damages, on appeals from the decision of commissioners of a rail road company, in reference to land damages, is very analogous.
We consider, that the probate court have nothing to do with the decision of the commissioners, in regard to a particular claim. That rests exclusively with the commissioners, and their decision is conclusive, unless appealed from. But that decision does not become a record, res adjudícala, so to speak, until made a record of the probate court. The commissioners are not a court of record, more than other commissioners, or other boards of triers. And the fact, that in some of these cases of boards of triers, appointed by different courts, the decision of the board is final, and in others it is more or less subject to revision in the court, to which it is to be returned, and by which it is to be accepted and recorded, makes no difference in regard to the necessity of having the report in all cases accepted and recorded by the court to which it is returned. And in all these cases the court, to whom the report is to be made, must of necessity determine, whether the report presented is the judgment of the commissioners. And to this extent, undoubtedly, the probate court have a judicial discretion, and for the manner of exercising it they cannot be called in question, so long as they keep within the limits of the law. In Connecticut this point has been expressly decided. Stoddard v. Moulthrop, 9 Conn. 502. Peck v. Sturgis, 11 Conn. 420. S. C., 12 Ib. 139.
We entertain no doubt, that the general understanding of the profession upon this subject has been in accordance with the views above expressed, and that it has been sanctioned by this court. [464]*464Aikens, J., 2 D. Ch. 07. This recognition of the necessity of the report of commissioners being “ approved by the court of probate,” made by Judge Aikens, was while the statute of 1821 was in force, and that statute contains no explicit provision to that effect, more than the present Revised Statutes. So, too, the statute of 1797 does not in express terms provide, that the report of commissioners shall be accepted by the probate court. Sec. 82. But the provisions are much the same, as in our present statute; — “ Report shall be made to the probate court stating the claims allowed and disallowed.” But in section 87 the matter is so incidentally referrred to, as to show, by way of implication, very clearly, that it was expected the probate court would accept, or reject, the report. 1 Tol. St., p. 157. And we entertain no doubt, that such has been the generally received construction of all subsequent statutes upon this subject.
The consideration, that the present statute every where speaks of the decision of the commissioners as the judgment to be appealed from, &c., is perfectly consistent with the view we now take of the subject. It is the decision of the commissioners, which is regarded as the adjudication. But it does not become such, in contemplation of law, until returned and accepted by the probate court, as the decision of the commissioners, and recorded as such. And while this necessary office is devolved upon that court, in regard to the doings of their own officers, it would be wonderful, if they had no discretion to inquire as to the genuineness, identity, or regularity, of such proceeding. It would, we apprehend, if so held, be regarded as a solitary instance of such a mere automaton duty, to be performed by a court of record, of very extensive jurisdiction, and highly important functions.
If the probate court have such a discretion, to determine what shall be regarded as a satisfactory report of the commissioners, and when they have performed their functions, and to recommit the report, if necessary to its completion, it will, we think, admit of doubt, how far such a deeree, as was made in the present case, could be regarded as a final decree in the premises. It seems to be as really interlocutory, as the decision of the county court, rejecting a report of auditors. And if the probate court refuse to accept a report of commissioners, which is regular and legal, they may doubtless be [465]*465compelled to do so, by some appropriate proceeding. But it does not seem to us, that the matter is so far finally disposed of in that court, that the case can properly come into the county court upon appeal. If that court had no discretion in the matter, an- appeal was proper, and their rejecting the report was merely void.
But we entertain no doubt, that the decision of the probate court was correct, unless the chapter of definitions in the Revised Statutes, in regard to the joint authority of public officers, is to be regarded as having overruled the common law upon this subject. And it would seem, that this is not regarded as the natural consequence of that definition in the state of Massachusetts, where it originated. George v. School Dist. in Mendon, 6 Met. 511. The definition seems to be nothing more, than a codification of the long established rule upon this subject, which will be found very well expressed in 2 Kent 633, n. a.
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The opinion of the court was delivered by
Redeiei/d, J.
The principal question in this case is, whether the probate court have any and if any what discretion, in regard to accepting, or rejecting, the report of commissioners on estates represented insolvent. We think it could scarcely' be said, that that court has no discretion in the matter. It is indeed admitted in argument, by the counsel for the appellant, that the probate court might reject the report of commissioners, for defects apparent on the face of the report. And this concession, which it would seem the counsel felt compelled to make, seems to us equivalent to giving that court a general, but not perhaps an unlimited, discretion in the matter. If we allow any discretion whatever to the probate court, and it seems to us we must, it seems impossible to limit it to matters apparent, upon the report.
It might be shown, that only one of the commissioners sat in the hearing of the claims and offsets brought before them, and that this commissioner had used the name of the other commissioners, in making the report, without their consent. And the other two commissioners might have held separate sessions, and made a counter report. It might be shown, that the proper notices had not been given, and it can scarcely be supposed, that the legislature intended to have the return of the' commissioners, in regard to notice, any [463]*463thing more than prima facie evidence. Many other cases might be supposed, where it is evident some discretion must be supposed to reside in the probate court.
Many other very conclusive reasons might, as it seems to us, be drawn, from the analogous appointments in other courts, in favor of some discretion in the court of probate, in regard to accepting their report. We do not perceive any essential difference between the case before us and that of the commissioners, or appraisers of damages,1 or committees of distribution, appointed by the several courts, to whom such power is given, where the report of the commission is not by law subject to a general revision, but, when accepted, is conclusive of the matter. The report of commissioners to appraise damages, on appeals from the decision of commissioners of a rail road company, in reference to land damages, is very analogous.
We consider, that the probate court have nothing to do with the decision of the commissioners, in regard to a particular claim. That rests exclusively with the commissioners, and their decision is conclusive, unless appealed from. But that decision does not become a record, res adjudícala, so to speak, until made a record of the probate court. The commissioners are not a court of record, more than other commissioners, or other boards of triers. And the fact, that in some of these cases of boards of triers, appointed by different courts, the decision of the board is final, and in others it is more or less subject to revision in the court, to which it is to be returned, and by which it is to be accepted and recorded, makes no difference in regard to the necessity of having the report in all cases accepted and recorded by the court to which it is returned. And in all these cases the court, to whom the report is to be made, must of necessity determine, whether the report presented is the judgment of the commissioners. And to this extent, undoubtedly, the probate court have a judicial discretion, and for the manner of exercising it they cannot be called in question, so long as they keep within the limits of the law. In Connecticut this point has been expressly decided. Stoddard v. Moulthrop, 9 Conn. 502. Peck v. Sturgis, 11 Conn. 420. S. C., 12 Ib. 139.
We entertain no doubt, that the general understanding of the profession upon this subject has been in accordance with the views above expressed, and that it has been sanctioned by this court. [464]*464Aikens, J., 2 D. Ch. 07. This recognition of the necessity of the report of commissioners being “ approved by the court of probate,” made by Judge Aikens, was while the statute of 1821 was in force, and that statute contains no explicit provision to that effect, more than the present Revised Statutes. So, too, the statute of 1797 does not in express terms provide, that the report of commissioners shall be accepted by the probate court. Sec. 82. But the provisions are much the same, as in our present statute; — “ Report shall be made to the probate court stating the claims allowed and disallowed.” But in section 87 the matter is so incidentally referrred to, as to show, by way of implication, very clearly, that it was expected the probate court would accept, or reject, the report. 1 Tol. St., p. 157. And we entertain no doubt, that such has been the generally received construction of all subsequent statutes upon this subject.
The consideration, that the present statute every where speaks of the decision of the commissioners as the judgment to be appealed from, &c., is perfectly consistent with the view we now take of the subject. It is the decision of the commissioners, which is regarded as the adjudication. But it does not become such, in contemplation of law, until returned and accepted by the probate court, as the decision of the commissioners, and recorded as such. And while this necessary office is devolved upon that court, in regard to the doings of their own officers, it would be wonderful, if they had no discretion to inquire as to the genuineness, identity, or regularity, of such proceeding. It would, we apprehend, if so held, be regarded as a solitary instance of such a mere automaton duty, to be performed by a court of record, of very extensive jurisdiction, and highly important functions.
If the probate court have such a discretion, to determine what shall be regarded as a satisfactory report of the commissioners, and when they have performed their functions, and to recommit the report, if necessary to its completion, it will, we think, admit of doubt, how far such a deeree, as was made in the present case, could be regarded as a final decree in the premises. It seems to be as really interlocutory, as the decision of the county court, rejecting a report of auditors. And if the probate court refuse to accept a report of commissioners, which is regular and legal, they may doubtless be [465]*465compelled to do so, by some appropriate proceeding. But it does not seem to us, that the matter is so far finally disposed of in that court, that the case can properly come into the county court upon appeal. If that court had no discretion in the matter, an- appeal was proper, and their rejecting the report was merely void.
But we entertain no doubt, that the decision of the probate court was correct, unless the chapter of definitions in the Revised Statutes, in regard to the joint authority of public officers, is to be regarded as having overruled the common law upon this subject. And it would seem, that this is not regarded as the natural consequence of that definition in the state of Massachusetts, where it originated. George v. School Dist. in Mendon, 6 Met. 511. The definition seems to be nothing more, than a codification of the long established rule upon this subject, which will be found very well expressed in 2 Kent 633, n. a. “ If the authority, in a matter of mere “ private concern, be confided to more than one agent, it is requisite “ that all should join in the execution of the power, and they are “jointly responsible for each other; though the cases admit the rule “ to be different in a matter of public trust, or of power conferred “ for public purposes; and if all meet in the latter case, the act of “ the majority will bind.” Grindley v. Barker, 1 B. & P. 229, Towne v. Jaquith, 6 Mass. 46. Short v. Pratt, Ib. 496. Whitman v. Tyler, 8 Ib. 284. Barrett v. Porter, 14 Ib. 143, and cases cited by the learned commentator. The same principle has been often recognized by this court. Newell v. Ex’r of Keith, 11 Vt. 214.
The result of all which is, that, in the opinion of this court, the decree of the probate court was not only within their authority, but was the only one they could legally have made- The board, as such, had not completed their business, and the matter should have been recommitted to them for farther proceedings. And had that been done, very likely the result might have been satisfactory to all. If not, either could have properly taken an appeal from the decision of the commissioners, whenever that should be formally made; and until that time, it seems to us, an appeal was premature.
We must, therefore, reverse the judgment of the county court and dismiss the appeal,