Kingman v. Judge of Probate

The first section of chapter 163 of the Revised Statutes provides that “ an}’ creditor, dissatisfied with the decision of the commissioners upon any claim by him exhibited, may appeal therefrom, by petition to the judge, filed in the probate office within thirty days after the acceptance of their report, and shall file therewith a declaration in proper form upon his claim.”

*178Section third of the same chapter provides that “ if the administrator is dissatisfied with the allowance of any claim,' he may appeal therefrom by petition to the judge, filed in the probate office within thirty days after the acceptance of the report; and if the creditor, or his agent or attorney, is not present to take notice thereof, the judge shall order notice thereof to be given to the creditor.”

The other sections of the chapter, from the first to the eleventh, provide for the manner of giving notice, in case an appeal is taken, and they regulate the pleadings and proceedings in the common pleas, the trials, and the effect of the judgments.

The eleventh section is as follows: “ If the creditor and administrator, in either of the cases aforesaid, shall, within said thirty days, agree before the judge to submit the disputed claim to referees, a rule therefor shall be granted, and their report being accepted by the judge, shall be final.”

It is upon this eleventh section that the appellants found their appeal and insist upon the right to have the claim in controversy referred to referees; and were there no other statute regulations in regard to appeals from commissioners, we think that the claim would have to be referred. The statute is imperative in its terms that “ the rule therefor shall be granted.” The phraseology is similar to that relative to the private claims of administrators, which provides that if the claim is contested by any heir or creditor, unless the parties shall agree in writing that the judge of probate shall decide the claim, “ he shall refer the same to one or more referees.” And upon this latter statute, Parker. J., in Abbe v. Norcott, 8 N. H. Rep. 53, remarks : “ Had any heir or creditor appeared to contest the claim before the judge, it must have been referred.”

By the act of December 5th, 1844, entitled “ An act relating to appeals from commissioners, in amendment of and in addition to section 3 of chapter 163 of the Revised Statutes of New Hampshire,” it is provided “ that if any heir or *179creditor to an estate is dissatisfied with the allowance of any claim, he may appeal therefrom in the same manner the administrator is now authorized to appeal, first filing in the probate office a bond, to the satisfaction of the judge, conditioned to indemnify the estate from any cost or damage that may accrue in the prosecution of said appeal.” Pamp. Laws, ch. 137.

Does this act change the eleventh section of the chapter, as above cited ? If not, then the claim should be submitted to referees.

It is to be observed that the title of the act declares it to be in amendment of, and in addition to, the third section; and, consequently, so far as that may be regarded as indicative of its meaning, the act would seem intended not to affect the rest of the chapter, unless it necessarily must in order to make the act itself effective. By uniting the third section and the act into one section, it would read thus : If the administrator or any heir or creditor to an estate is dissatisfied with the allowance of- any claim, he may appeal therefrom, by.petition to the judge, filed in the probate office within thirty days after the acceptance of the report; and if the creditor, or his agent or attorney, is not present to take notice thereof, the judge shall order notice thereof to be given to the creditor. And in case the appeal is taken by an heir or creditor, he shall file in the probate office a bond, to the satisfaction of the judge, conditioned to indemnify the estate from any cost or damage that may accrue in the prosecution of said appeal.

These two sections, taken together, give the administrator and every heir and every creditor the right of appeal from the allowance of any claim, so that there may be as many appeals as there are creditors and heirs. In the present case, there were four appeals taken. Now must all of these agree to refer a claim before the same can he referred ; and in case any one disagrees thereto, must a litigation be had in court? Or shall the eleventh section remain unchanged, and if the *180creditor and administrator agree to refer the claim, shall it be referred ? We think the latter, and that the act of December, 1844, does not affect the elevenrh section. The object of the provision to refer was to expedite the settlement of estates, and that object would be almost entirely defeated, if the will of every creditor and every heiris to control the matter. So long as there is a litigation going on with reference to any of the claims, so long must the estate stand open, and it appears to us that if the Legislature had intended, by the act of 1844, to require that every heir and every creditor should agree to the reference as well as the administrator, they would have so said. The provision would have been most natural, and one not likely to have been overlooked, had such been the intention or wish of the Legislature. The eleventh section is so intimately connected with the third, in its provisions in the allowance of the appeal and the expeditious decision of the claim, that it' would hardly have been left without amendment, had it not been designedly the intention not to amend it. And, as before suggested, the title of the act itself would seem to show that the chapter, independent of the third section, was to remain unaltered; otherwise it would have said an act in amendment of the chapter, instead of this particular third section; or would have provided that all parts of the chapter, inconsistent- with the act, should be repealed.

We think, further, that the construction we put upon these statutes is the only one that could be carried out without much perplexity and delay, and that it is that which is best calculated to advance the interests of all who have rights in unsettled estates.

But we do not think that the judge of probate is bound, in his appointment of referees, by the selection made by the administrator and creditor. The statute does not, in terms, require it, and, as suggested in argument, there might be collusion between the administrator and creditor that might operate to the injury of others interested in the estate. We *181see no evidence of fraud or collusion in this case, and the reference agreed upon would appear to be fair; still the settlement of a claim is one in which all the heirs and creditors to an estate have an interest, and upon the question of the appointment of the referees, they should all have an opportunity to be heard, as well as to be heard before the referees.

The judge of probate has not the discretion, under the statute, to say whether the claim shall be referred or not. The statute is imperative upon him, and he must grant the rule, appointing whomsoever he may think advisable; and whenever there are others to be affected by the proceedings, he should designate and appoint the referees upon notice to and hearing of all concerned.

In this case, it will be the duty of the judge of probate to issue a notice to the administrator and creditor, and to all the appellants from the decision of the commissioner, and to all others who may be interested in the estate, that they may be heard, if they desire, in the designation and appointment of the referees.

The decree is, of course, to be reversed, and the judge of probate will proceed to appoint referees according to the rule here indicated.