Gilchrist, C. J.
Joseph Stevens died in March, 1816. He left one child and heir at law, Lydia Ann, born on the 11th of March, 1811. His widow Catharine, now Mrs. Bennett, was [198]*198married in the Spring of 1820, and was appointed administratrix on the 23d of April, 1816, and guardian of Lydia Ann on the 25th of November, 1817. Lydia Ann married Mathes on the 11th of December, 1831, and died in 1844.
The administratrix returned an inventory of Joseph Stevens’s estate as follows:
Real Estate 1,777.00 ' Cash 18.00
Personal Estate 754.96 of which there was in notes the sum of 219.08
$2531.96 $237.08
She rendered one account only, which was settled on the 5th of January, 1847, from the decree on which this appeal is taken.
The appeal is taken by the guardian of Sarah Jane, Joseph S., and Adelaide Mathes, children of Lydia Ann, and grandchildren of Joseph Stevens. The appeal states that they are heirs at law of Stevens, and interested in his estate. The appellee says that the report shows that the wards are not such heirs at law, nor interested in the estate, and that the appeal should be dismissed.
The property of Joseph Stevens descended to Lydia Ann, and was administered upon by the appellee. From Lydia Ann it descended to the wards, her children, who have an interest in the manner in which the estate was administered. If they can charge her with a larger sum than she is charged with in her account, their share will be proportionally increased, and therefore they are interested in the matter sufficiently to be authorized to appeal. Upon this point we are referred to the case of Downing v. Porter, 9 Mass. 386. Jonathan Porter died, and William Porter was his executor. The appellant was daughter and heiress of Jabez Porter, residuary devisee of Jonathan. The appeal was taken from the decree on the account of the executor of Jonathan, and the court held that the appellant was not sufficiently connected with the estate of Jonathan, to appeal; which appeal should have been taken by the administrator of Jabez, as he was entitled to receive the personal estate which came to Mrs. Downing. There was an intermediate administrar tor between the appellant and the estate of Jonathan, whose duty it was to appeal. Here, there is nobody intermediate between [199]*199the guardian and Mrs. Bennett, through whose hands the estate legally proceeded, and this makes an essential difference between the two cases. See also Bryant v. Allen, 6 N. H. Rep. 116.
The first point made by the appellant is, that the account should be made up, and the balance struck, as of March 11, 1811, when Lydia Ann became of the age of seven years, and there would be no farther claim against the estate; and that interest should be cast either upon the whole balance then in her hands, or at least, upon the notes, amounting to $219.
As to the claim against the estate ceasing when the minor became seven years old, it may be remarked that the provision of § 28, ch. 162, Rev. Stat. is, that if any thing shall remain after payment of the debts, &c. “ and for the support of the children, if any, under seven years of age,” the residue shall be distributed among the heirs at law. Here Lydia Ann was the sole heir at law; all the residue belonged to her, whether she were more or less than seven years old; and as this residue was the fund out of w'hich she was to be supported, there seems to be no reason why that age should be the point at which the charge of interest should commence.
But the report finds, that a balance has generally been due the administratrix on her account for expenditures for the support of Lydia Ann, larger than the balance in her hands as administratrix ; and therefore he charges her with no interest on the balance in her hands a¿fc that date, which was $615.16.
In the case of Griswold v. Chandler, 5 N. H. Rep. 497, it is held that an administrator is not chargeable with interest, except in three cases. Where, without reason, he retains money in his hands unemployed when it ought to be paid over; where he receives interest for money which belongs to the estate; and where he applies money belonging to the estate to his own use. It may be said that as the notes were on interest, they come within the second of these categories. But she is charged with the notes and interest up to the time of the inventory; and the question whether she should be charged with interest on them, is nothing but the question whether she should be charged with interest on the sum then in her hands, of which they formed a [200]*200part. The report states a good reason why she should not be charged with interest. It would be unjust that she should pay interest when the balance was all along in her favor, and we think it should not be allowed.
The second point is, that, by the marriage of the administratrix in 1820, her trust was extinguished; and that therefore all her charges accruing subsequent to that time should be 'excluded. This is not stated as any reason for the appeal, nor does it appear, from any part of the appeal, when Mrs. Bennett was married. There is no reason to suppose that when the appeal was taken, this was regarded as a grievance, that is, that charges were made subsequent to her marriage. Whether they were legally made or not, if they were liable to no objection, but that her power had expired, and were properly made, or were reasonable in themselves, supposing her power to continue, no actual injury is sustained nor injustice done. The appellee contends that the appellant is precluded from this position by the fact that it is not stated nor included in the reasons for the appeal; and he refers to Boynton v. Dyer, 18 Pick. 1. In that case Morton, J., says that in appeals from decrees of the judge of probate “ the appellants are restricted to such points as are specified in their reasons of appeal. These are the only points which the adverse party has been notified to be prepared to investigate. Every thing else, not having been objected to, is impliedly assented to and presumed to be correct.” «
By the act of July 2d, 1822, (N. H. Laws, 373, ed. of 1830,) it is provided, in the first section, that a party appealing shall set forth “ the reasons of his appeal.” By the second section, if he has been prevented by accident, &c., he may petition this court, setting forth “ his reasons for appealingand the same expressions are used in ch. 170, §§ 2. 7, Rev. Stat. In the case of Bean v. Burleigh, 4 N. H. Rep. 550, the appellant petitioned the court to be allowed an appeal; and it was held that nothing was open to objection here, in the proceedings in the court below, except the grievances alleged in the petition as the reasons of appeal. It is said, that “this imposes no hardship upon him who asks for an appeal, because he is at liberty to [201]*201state as many reasons as he chooses,” and “ if the parties are at liberty to have those parts of the proceedings in the court below, by which they are aggrieved, brought here and revised and corrected, it is all they need.” The same reasons apply to appeals from decrees; and we think this point must be overruled.
The third point is, that the allowance of $150 was improperly made. Stevens died in March, 1816, and the allowance was made in January, 1847. The allowance is authorized to be made for the present support of the widow. Rev. Stat. ch. 165, § 1.
Free access — add to your briefcase to read the full text and ask questions with AI
Gilchrist, C. J.
Joseph Stevens died in March, 1816. He left one child and heir at law, Lydia Ann, born on the 11th of March, 1811. His widow Catharine, now Mrs. Bennett, was [198]*198married in the Spring of 1820, and was appointed administratrix on the 23d of April, 1816, and guardian of Lydia Ann on the 25th of November, 1817. Lydia Ann married Mathes on the 11th of December, 1831, and died in 1844.
The administratrix returned an inventory of Joseph Stevens’s estate as follows:
Real Estate 1,777.00 ' Cash 18.00
Personal Estate 754.96 of which there was in notes the sum of 219.08
$2531.96 $237.08
She rendered one account only, which was settled on the 5th of January, 1847, from the decree on which this appeal is taken.
The appeal is taken by the guardian of Sarah Jane, Joseph S., and Adelaide Mathes, children of Lydia Ann, and grandchildren of Joseph Stevens. The appeal states that they are heirs at law of Stevens, and interested in his estate. The appellee says that the report shows that the wards are not such heirs at law, nor interested in the estate, and that the appeal should be dismissed.
The property of Joseph Stevens descended to Lydia Ann, and was administered upon by the appellee. From Lydia Ann it descended to the wards, her children, who have an interest in the manner in which the estate was administered. If they can charge her with a larger sum than she is charged with in her account, their share will be proportionally increased, and therefore they are interested in the matter sufficiently to be authorized to appeal. Upon this point we are referred to the case of Downing v. Porter, 9 Mass. 386. Jonathan Porter died, and William Porter was his executor. The appellant was daughter and heiress of Jabez Porter, residuary devisee of Jonathan. The appeal was taken from the decree on the account of the executor of Jonathan, and the court held that the appellant was not sufficiently connected with the estate of Jonathan, to appeal; which appeal should have been taken by the administrator of Jabez, as he was entitled to receive the personal estate which came to Mrs. Downing. There was an intermediate administrar tor between the appellant and the estate of Jonathan, whose duty it was to appeal. Here, there is nobody intermediate between [199]*199the guardian and Mrs. Bennett, through whose hands the estate legally proceeded, and this makes an essential difference between the two cases. See also Bryant v. Allen, 6 N. H. Rep. 116.
The first point made by the appellant is, that the account should be made up, and the balance struck, as of March 11, 1811, when Lydia Ann became of the age of seven years, and there would be no farther claim against the estate; and that interest should be cast either upon the whole balance then in her hands, or at least, upon the notes, amounting to $219.
As to the claim against the estate ceasing when the minor became seven years old, it may be remarked that the provision of § 28, ch. 162, Rev. Stat. is, that if any thing shall remain after payment of the debts, &c. “ and for the support of the children, if any, under seven years of age,” the residue shall be distributed among the heirs at law. Here Lydia Ann was the sole heir at law; all the residue belonged to her, whether she were more or less than seven years old; and as this residue was the fund out of w'hich she was to be supported, there seems to be no reason why that age should be the point at which the charge of interest should commence.
But the report finds, that a balance has generally been due the administratrix on her account for expenditures for the support of Lydia Ann, larger than the balance in her hands as administratrix ; and therefore he charges her with no interest on the balance in her hands a¿fc that date, which was $615.16.
In the case of Griswold v. Chandler, 5 N. H. Rep. 497, it is held that an administrator is not chargeable with interest, except in three cases. Where, without reason, he retains money in his hands unemployed when it ought to be paid over; where he receives interest for money which belongs to the estate; and where he applies money belonging to the estate to his own use. It may be said that as the notes were on interest, they come within the second of these categories. But she is charged with the notes and interest up to the time of the inventory; and the question whether she should be charged with interest on them, is nothing but the question whether she should be charged with interest on the sum then in her hands, of which they formed a [200]*200part. The report states a good reason why she should not be charged with interest. It would be unjust that she should pay interest when the balance was all along in her favor, and we think it should not be allowed.
The second point is, that, by the marriage of the administratrix in 1820, her trust was extinguished; and that therefore all her charges accruing subsequent to that time should be 'excluded. This is not stated as any reason for the appeal, nor does it appear, from any part of the appeal, when Mrs. Bennett was married. There is no reason to suppose that when the appeal was taken, this was regarded as a grievance, that is, that charges were made subsequent to her marriage. Whether they were legally made or not, if they were liable to no objection, but that her power had expired, and were properly made, or were reasonable in themselves, supposing her power to continue, no actual injury is sustained nor injustice done. The appellee contends that the appellant is precluded from this position by the fact that it is not stated nor included in the reasons for the appeal; and he refers to Boynton v. Dyer, 18 Pick. 1. In that case Morton, J., says that in appeals from decrees of the judge of probate “ the appellants are restricted to such points as are specified in their reasons of appeal. These are the only points which the adverse party has been notified to be prepared to investigate. Every thing else, not having been objected to, is impliedly assented to and presumed to be correct.” «
By the act of July 2d, 1822, (N. H. Laws, 373, ed. of 1830,) it is provided, in the first section, that a party appealing shall set forth “ the reasons of his appeal.” By the second section, if he has been prevented by accident, &c., he may petition this court, setting forth “ his reasons for appealingand the same expressions are used in ch. 170, §§ 2. 7, Rev. Stat. In the case of Bean v. Burleigh, 4 N. H. Rep. 550, the appellant petitioned the court to be allowed an appeal; and it was held that nothing was open to objection here, in the proceedings in the court below, except the grievances alleged in the petition as the reasons of appeal. It is said, that “this imposes no hardship upon him who asks for an appeal, because he is at liberty to [201]*201state as many reasons as he chooses,” and “ if the parties are at liberty to have those parts of the proceedings in the court below, by which they are aggrieved, brought here and revised and corrected, it is all they need.” The same reasons apply to appeals from decrees; and we think this point must be overruled.
The third point is, that the allowance of $150 was improperly made. Stevens died in March, 1816, and the allowance was made in January, 1847. The allowance is authorized to be made for the present support of the widow. Rev. Stat. ch. 165, § 1. In the case of Hubbard, App. v. Woods, 15 N. H. Rep. 74, it was held that an allowance made four years after the death of the husband, was unauthorized by the statute; and a decree of an allowance was reversed. The allowance is for the support of the wife, presently after the death of the husband. It is not a free gift to the widow, but is intended to enable her to support herself until her interest in the estate can be set out to her in some way, and it may be considered in the distribution of the estate as part of her share. In this case thirty years had elapsed between the death of the husband, and the time of the decree; and if we could regard these facts alone, the decree should be reversed, as having been made at too late a period.
But no appeal was taken from this decree. It stands upon the record unreversed, and is binding upon all persons. We cannot reverse it indirectly, by charging her with the amount of it when she has a judgment for it in her favor, and this point cannot be sustained unless there be found something in the earlier statutes on this subject which should lead us to a different result.
By the act of February 3d, 1789, (N. H. Laws, 207.) which was in force at the time of Stevens’s death, the judge of probate could make no allowance to the widow, except where the personal estate was insufficient to pay the debts. In that case, she was entitled to her apparel, “ and such other of the personal estate as the judge should deem necessary.” He had no power to make her an allowance in all cases, until the passage of the act of July 2d, 1822, § 17, (N. H. Laws, 337, edit, of 1830.) The allowance then, could not have been made in 1816, for the want of power in the judge; nor by the act of 1822, because it [202]*202would have been too late, it being intended “for her present support and comfort; ” and. that reason exists also, under the Revised Statutes. But all this does not alter the effect of the decree making the allowance, as it was not appealed from, although the personal estate is sufficient to pay the debts; and the case provided for by the act of 1789, has not happened.
By the Revised Statutes, ch. 162, § 19, the Court of Probate is deemed, for all purposes, a Court of Record. By ch. 172, § 12, every decision of a judge of probate, so far as the same shall be affirmed, or unaltered by the Superior Court upon appeal, shall be considered to have been in force from the time it was made. Those decisions are stringent and positive, and the adjudged cases are equally so. Where there has been a mistake in an account settled by the Court of Probate, it is competent for the judge, at any time before the final settlement of the estate, to correct it in a subsequent account, provided there does not appear by the record to have been a particular adjudication upon the subject; Allen v. Hubbard, 8 N. H. Rep. 489. In the case of Poplin v. Hawke, 8 N. H. Rep. 124, two married women had made their wills. It had already been settled in Marston v. Norton, 5 N. H. Rep. 205, on an appeal from a decree of the Court of Probate, that a married woman could not devise her lands by will. But the wills were approved in the Probate Court, no appeal having been taken, and it was held that the decrees were conclusive; and the settlement of a pauper was based upon a- title derived under the wills. With these statutes and decisions before us, we must hold that the administratrix is entitled to hold the allowance made her, and to charge it in her account.
But it is said, in the fourth place, that even if the allowance were properly made, it should have been accounted as part of the distributive share' of the administratrix in the estate. The 1st section, ch. 165 of the Revised Statutes, enacts, that the whole allowance, or such part thereof as the judge may deem reasonable, shall be accounted as part of her share. It is said that by the Revised Statutes the wrord shall is used; whereas in the Act of 1822, the word may is employed. But these two [203]*203words are not those which confer the discretion upon the judge. He is to charge her with such part as he deems reasonable. This is the discretionary clause; and if he does not see fit to chai’ge her with any part of it, we cannot exercise a discretion for him. That would be contrary to the recognized doctrine that obtains where an inferior tribunal has a discretion to exercise. The fact that the decree was not appealed from, is conclusive upon this view of the case also. We cannot reverse the decree indirectly, by charging her with its amount when we could not do it directly.
The above are all the points and items insisted on in the argument by the appellant’s counsel. But the second reason of appeal is, that the sum of $259.51 allowed by the judge for the expenses of administration, &c., was a much larger sum than was due, or should have been allowed.
This is stated with as much precision as the case would permit, because the judge does not state what items are allowed, and what are disallowed. The charges of the administratrix amount to $379.82. The decree allows of this, $259.51 for “ expenses of administration, &c.,” thus disallowing the sum of $120.31. The auditor allows $233.50, making a difference of $26.01 against the administratrix, which, as she is entitled to one third as an heir, is diminished to a difference of only $17.34 in the final result. The papers do not show in what this difference happens. But the report of the auditor is prima facie evidence that the account therein stated is correct. The decree is vacated by the appeal, and all we have to proceed upon is the report of the auditor; and a new decree, affirming or reversing the former one, must be made by this Court. Boynton v. Dyer, 18 Pick. 1.
The decree of the judge of probate, charging her with the balance of $240.10, is affirmed, and she must be charged with the further sum of $17.34, making the balance with which she must be charged in her capacity of guardian, the sum of $257.44, according to the report of the auditor. As the appellee has prevailed in relation to the most important matters in controversy, the appellant cannot be allowed costs ; but each party must pay his own costs. Griswold v. Chandler, 6 N. H. Rep. 61.
[204]*204The decree of the judge of probate is affirmed as to the other matters specified in the appeal, and the case is remitted to the Court of Probate for further proceedings.