Burns v. Fay

delivered the opinion of the Court. Having considered the defendant’s exceptions to the decisions of the judge at - the trial, we are of opinion, that they are unsupported by any legal principle, and that the plaintiffs are en titled to judgment on the verdict.

*11By the St. 1784, c. 2, it is provided, “ that, in case the ixecutor or administrator [on an insolvent estate] shall be dissatisfied with any creditor’s claim allowed by the commissioners, and shall give notice thereof at the probate office, and also to the creditor within twenty days, such claim shall by the judge of probate be struck out of the commissioners’ report, unless such creditor shall commence and prosecute at the common law his claim as aforesaid, as speedily as the same can be done ” &c. ; “ and when a claim shall be disputed in the course of the common law as aforesaid, execution shall not issue as in common cases, but the judgment of the Court respecting the same, shall be the amount of the claim, and added to or deducted from the commis moners’ report, as the case may require.”

We think there can be no doubt as to the true meaning md construction of the statute. When the executor or ad.ninistrator is dissatisfied with any claim allowed by the commissioners, and gives notice, as the statute requires, of his objection, which it is understood was done by the defendant, the creditor is to commence his action, and have his claim ascertained in the course of the common law, and the judg ment of the court respecting the same, shall be the amount of the claim. The report is to remain unaltered in the probate office, until the decision of the suit at law, and then is to be corrected by the judgment on the action. And so it was decided in Bordman v. Smith, 4 Pick. 214. In other words, the amount of the judgment is to be substituted for the amount allowed by the commissioners. And although the plaintiffs might have been satisfied with the allowance made by the commissioners, yet as the defendant objected and appealed, the plaintiffs had an undoubted right to have their whole claim ascertained, whether it was more or less than the sum allowed by the commissioners.

As to the second exception relied on by the defendant’s counsel, we think it very clear that the report of the commissioners was incompetent evidence to prove the defendant’s set-off. The action was to be tried according to the course of the common law, and by the common rules of evidence. And the decision of the commissioners, allowing a claim, is *12no evidence in an action, the object of which is to correct their judgment, nor is it any proof of the plaintiff’s assent to the allowance of the claim ; for by the defendant’s appeal the plaintiff’s whole claim was open to be tried on its original merits.

We think also the defendant’s books were not competent to prove cash charges over 40 shillings. This is in conformity with the general rule, to which the case of Union Bank v. Knapp, 3 Pick. 96, is an exception. This case is not within the exception and the reason upon which that decision rests.

Judgment on the verdict.

A question was made, whether execution for the costs of this suit should issue against the administrator de bonis propriis, or against the goods and estate of Hastings, in the hands of the administrator.

As to the question of costs, we are of opinion, that the plaintiffs are entitled to their execution against the defendant, de bonis propriis. This case comes within the reason of the rule as laid down in Hardy v. Call, 16 Mass. R. 530. For, although the administrator is defendant in the action, yet he, by his appeal from the allowance by the commissioners, compelled the plaintiffs to commence their action, or abandon their claim. The case therefore is similar in principle with that of Hardy v. Call. If, in the exercise of a sound discretion, the administrator had any sufficient reason for his appeal, the judge of probate will undoubtedly allow the costs to be charged in his account of administration. But if the appeal was groundless and the administrator shall fail to show that he had apparently some reason to be dissatisfied with the allowance made by the commissioners, the costs certainly ought not to be a charge on the goods and estate of thé intestate. We are also inclined to the opinion, that in all cases of recovery by a creditor, under the insolvent law, judgment for costs ought to be against the administrator, de bonis propriis; as the amount of the creditor’s claim only is to be added to or deducted from the commissioners’ report, *13and no provision is made as to costs. But as to this, it is unnecessary in the present case to decide, as we are satisfied that such must be the form of judgment in this case, whatever may be the construction of the statute.