At the term liolden in this county by adjournment in August following, the opinion of the Court was delivered by
Wkston J.
■ The counsel for the defendant has moved the Court for leave to withdraw his rejoinder to the replication to his [166]*166fourth plea; and for leave to rejoin anew. That set of pleadings has twice resulted in joinder on demurrer. The judgment of the Court has been given, after repeated and solemn arguments. When the opinion of the Court had been pronounced upon the pleadings as they first stood, leave was given to amend, after which, to the plaintiff’s surrejoinder, the defendant demurred specially, and the plaintiff joined in demurrer. After argument, the demurrer was again decided. The cause having been greatly protracted, and the most ample opportunity afforded on both sides for deliberation, the claims of justice do not, in our judgment, require that the pleadings should be again opened. The defendant’s motion is accordingly overruled.
All the issues to the country, have been found in favor of the plaintiff. The defendant moves that the verdict may be set aside, and a new trial granted; upon various grounds, set forth in his motion. A brief statement was offered by the defendant, under the act of 1831, ch. 514, to abolish special pleading, which was rejected, and we think properly, by the Judge, who presided at the trial. The pleadings upon these issues had closed, before the passage of that law. That permitted no other plea than the general issue; here the defendant had the benefit of four other pleas; and was besides permitted by the Judge to give in evidence every thing, set forth in his brief statement.
The defendant’s affidavit was very clearly not competent evidence of the facts therein detailed; and could not have been legally received.
The jury have found that none of the heirs, for whose benefit this suit was brought, except Henry Titcomb, deceased, who is represented by his administrators, knew of the existence of the notes in controversy. We cannot regard the other heirs as affected by the knowledge which Henry had and concealed. Nor do we think that his knowledge and unfaithful acquiescence, in his character as guardian, can or ought to conclude his wards.
The verdict is objected to as against evidence, or against the weight of evidence. We have examined it with care; and do not feel ourselves called upon, in the exercise of a sound discretion, to disturb the verdict on this ground. Two juries, to whom the case has been submitted, have come substantially to the same result.
[167]*167The law of Massachusetts, in force when the bond was given, clearly made it the duty of the administrator, within three months, to cause an inventory to be made of the estate of the deceased. And by the condition of the bond, it was to be a true and perfect inventory of all and singular the goods, chattels, rights and credits of the deceased, which have or shall come to the hands, possession, or knowledge of the administrator. The Judge of Probate had no power to dispense with this duty. His authority was limited by law; and the bond was for the security of all persons interested in the estate. No citation in the Probate Court was necessary, as this Court has holden in this case, to render the administrator liable upon his bond, for not returning a true and perfect inventory.
The plaintiff had proved that certain credits of the deceased, within the knowledge of the defendant, existed when the inventory was made, and that they were omitted therein, notwithstanding which, the Judge was requested to instruct the jury that the inventory returned, verified by the oath of the administrator, was evidence that it contained all the goods, effects, and credits of the deceased, which had come to his knowledge. The burthen of proof was on the plaintiff, to show the inventory defective ; but that being shown, there was nothing in the inventory to justify the omission, or which would amount to repelling proof. The inventory, coupled with the proof, became evidence that that duty bad been omitted, not that it had been performed.
With regard to the eighth ground of the defendant’s motion, the small note was waived by the plaintiff at the trial, and the jury were instructed to throw that out of the case. And as to the ninth, the statute of 1830, ch. 463, does make it the duty of the jury to assess the damages in these cases ; and because this was not done at a former trial, the verdict was set aside. Potter v. Titcomb, 7 Greenl. 334.
The note allowed by the jury, against the defendant, was on interest by its terms; and he was in our opinion rightfully chargeable therewith, not exceeding the penalty of the bond.
It is objected, for reasons set forth in the motion, that the jury should not have awarded the whole sum against the defendant, but that they should have deducted from their verdict the defend[168]*168ant’.s 'own proportion, as heir of part of the- fund, the widow’s share, which was one. half, there being no children, and the proportions of certain of the other heirs. On the part of the plaintiff, it is insisted that he ought to have execution for the whole sum, to be distributed in the Probate office according to law; and as the rights of the parties may be there made to appear. We do not find, that by law, the Judge is any where made the trustee or holder of moneys belonging to an estate, of which he has jurisdiction, in due course of administration. It would impose upon him an onerous and unnecessary duty. If any such had been contemplated, he would doubtless have been holden to give bonds, which is uniformly required of public officers, who receive money in trust for others. The Judge of Prohate is merely nominal in the suit. The act to regulate the jurisdiction and proceedings of the Courts of Probate, revised laws, ch. 51, sec. 71, provides that in all suits, brought in the name of - any Judge of Probate upon a Probate bond, the writ, in addition to the usual indorsement of the name of the plaintiff or his attorney, shall also have the name of the person or persons, for whose particular use and benefit the suit is brought, written thereon. The money is recovered for their use, and not for the Judge; and w.e can only award execution, so far as they are interested in a failure of duty, on the part of the administrator. If others have suffered, they cannot participate in the remedy, but it must be limited to those, for whose particular use the suit is brought.
By the 72d section of the same law, it is provided, that where any administrator shall have received the personal property of an intestate, and shall not have exhibited upon oath, a particular inventory thereof, which is the case before us, execution shall be awarded against him for such a part of the penalty of his administration bond, as the Supreme Court of Probate shall, on full consideration of all the circumstances of the case, judge reasonable ; to be distributed among the parties interested, agreeably to the directions of law. The fruit of the remedy is not a decree or adjudication of the Supreme Court, that the administrator perform the neglected duty, and account in the Probate office; but he is at once made liable to an execution, not exceeding the amount of the penalty, by way of indemnity to the party injured; [169]*169and beyond this, he cannot be made chargeable upon the bond.
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At the term liolden in this county by adjournment in August following, the opinion of the Court was delivered by
Wkston J.
■ The counsel for the defendant has moved the Court for leave to withdraw his rejoinder to the replication to his [166]*166fourth plea; and for leave to rejoin anew. That set of pleadings has twice resulted in joinder on demurrer. The judgment of the Court has been given, after repeated and solemn arguments. When the opinion of the Court had been pronounced upon the pleadings as they first stood, leave was given to amend, after which, to the plaintiff’s surrejoinder, the defendant demurred specially, and the plaintiff joined in demurrer. After argument, the demurrer was again decided. The cause having been greatly protracted, and the most ample opportunity afforded on both sides for deliberation, the claims of justice do not, in our judgment, require that the pleadings should be again opened. The defendant’s motion is accordingly overruled.
All the issues to the country, have been found in favor of the plaintiff. The defendant moves that the verdict may be set aside, and a new trial granted; upon various grounds, set forth in his motion. A brief statement was offered by the defendant, under the act of 1831, ch. 514, to abolish special pleading, which was rejected, and we think properly, by the Judge, who presided at the trial. The pleadings upon these issues had closed, before the passage of that law. That permitted no other plea than the general issue; here the defendant had the benefit of four other pleas; and was besides permitted by the Judge to give in evidence every thing, set forth in his brief statement.
The defendant’s affidavit was very clearly not competent evidence of the facts therein detailed; and could not have been legally received.
The jury have found that none of the heirs, for whose benefit this suit was brought, except Henry Titcomb, deceased, who is represented by his administrators, knew of the existence of the notes in controversy. We cannot regard the other heirs as affected by the knowledge which Henry had and concealed. Nor do we think that his knowledge and unfaithful acquiescence, in his character as guardian, can or ought to conclude his wards.
The verdict is objected to as against evidence, or against the weight of evidence. We have examined it with care; and do not feel ourselves called upon, in the exercise of a sound discretion, to disturb the verdict on this ground. Two juries, to whom the case has been submitted, have come substantially to the same result.
[167]*167The law of Massachusetts, in force when the bond was given, clearly made it the duty of the administrator, within three months, to cause an inventory to be made of the estate of the deceased. And by the condition of the bond, it was to be a true and perfect inventory of all and singular the goods, chattels, rights and credits of the deceased, which have or shall come to the hands, possession, or knowledge of the administrator. The Judge of Probate had no power to dispense with this duty. His authority was limited by law; and the bond was for the security of all persons interested in the estate. No citation in the Probate Court was necessary, as this Court has holden in this case, to render the administrator liable upon his bond, for not returning a true and perfect inventory.
The plaintiff had proved that certain credits of the deceased, within the knowledge of the defendant, existed when the inventory was made, and that they were omitted therein, notwithstanding which, the Judge was requested to instruct the jury that the inventory returned, verified by the oath of the administrator, was evidence that it contained all the goods, effects, and credits of the deceased, which had come to his knowledge. The burthen of proof was on the plaintiff, to show the inventory defective ; but that being shown, there was nothing in the inventory to justify the omission, or which would amount to repelling proof. The inventory, coupled with the proof, became evidence that that duty bad been omitted, not that it had been performed.
With regard to the eighth ground of the defendant’s motion, the small note was waived by the plaintiff at the trial, and the jury were instructed to throw that out of the case. And as to the ninth, the statute of 1830, ch. 463, does make it the duty of the jury to assess the damages in these cases ; and because this was not done at a former trial, the verdict was set aside. Potter v. Titcomb, 7 Greenl. 334.
The note allowed by the jury, against the defendant, was on interest by its terms; and he was in our opinion rightfully chargeable therewith, not exceeding the penalty of the bond.
It is objected, for reasons set forth in the motion, that the jury should not have awarded the whole sum against the defendant, but that they should have deducted from their verdict the defend[168]*168ant’.s 'own proportion, as heir of part of the- fund, the widow’s share, which was one. half, there being no children, and the proportions of certain of the other heirs. On the part of the plaintiff, it is insisted that he ought to have execution for the whole sum, to be distributed in the Probate office according to law; and as the rights of the parties may be there made to appear. We do not find, that by law, the Judge is any where made the trustee or holder of moneys belonging to an estate, of which he has jurisdiction, in due course of administration. It would impose upon him an onerous and unnecessary duty. If any such had been contemplated, he would doubtless have been holden to give bonds, which is uniformly required of public officers, who receive money in trust for others. The Judge of Prohate is merely nominal in the suit. The act to regulate the jurisdiction and proceedings of the Courts of Probate, revised laws, ch. 51, sec. 71, provides that in all suits, brought in the name of - any Judge of Probate upon a Probate bond, the writ, in addition to the usual indorsement of the name of the plaintiff or his attorney, shall also have the name of the person or persons, for whose particular use and benefit the suit is brought, written thereon. The money is recovered for their use, and not for the Judge; and w.e can only award execution, so far as they are interested in a failure of duty, on the part of the administrator. If others have suffered, they cannot participate in the remedy, but it must be limited to those, for whose particular use the suit is brought.
By the 72d section of the same law, it is provided, that where any administrator shall have received the personal property of an intestate, and shall not have exhibited upon oath, a particular inventory thereof, which is the case before us, execution shall be awarded against him for such a part of the penalty of his administration bond, as the Supreme Court of Probate shall, on full consideration of all the circumstances of the case, judge reasonable ; to be distributed among the parties interested, agreeably to the directions of law. The fruit of the remedy is not a decree or adjudication of the Supreme Court, that the administrator perform the neglected duty, and account in the Probate office; but he is at once made liable to an execution, not exceeding the amount of the penalty, by way of indemnity to the party injured; [169]*169and beyond this, he cannot be made chargeable upon the bond. There is no reason why the parties, for whom the suit is brought, should await further proceedings in the Probate office. What the administrator is to pay, the Supreme Court determine; and the amount is not subject to the revision of the Judge of Probate. The provision for a distribution of the amount awarded, is in the same sentence, which authorises the award, and must be intended to form a part of it. There is certainly nothing in the section, which can justify the position, that the distribution is to be made by another Court. Certain of the heirs, or their representatives, caused this suit to be brought. The fund is not wanted by creditors. They have been paid, or their claims have been long since barred. The jury have settled the whole amount of damage, arising from the omission in the inventory. From this it is easy to settle the proportions, to which the heirs are respectively entitled.
We are well satisfied that the administrators of Henry Tit-comb are not entitled to any part of the fund, either as he was one of the heirs of the deceased, or as assignee of the moiety belonging to the widow. He must be understood to have discharged the administrator, with a full knowledge of all the facts. The verdict cannot be permitted to operate in his favor; and as his administrators would be entitled to recover his proportion, upon the verdict as it stands, it must be set aside, unless the administrators of Henry Titcomb will release to the defendant all their claim to any portion of the fund, in behalf of their intestate, as heir or assignee. This being done, we sustain the ruling of the Judge at the trial, and overrule the objections made to the verdict. The heirs are entitled to one half the fund. Their proportions are settled by the law, providing for the distribution of intestate estates, and judgment is to be entered in favor of each of the heirs, for whom the suit is brought, except the representatives of Henry Titcomb, deceased, for their respective proportions thus ascertained, of the one half of the amount of the verdict. The aggregate of these proportions, with the exception aforesaid, is the amount for which execution is to be awarded against the defendant.
Judgment accordingly.