Nichols and Wife vs. Bates, 6 Vt. 303

The opinion of the court was pronounced by Williams, Ch. J. — This is a scire facias brought on a ■judgment, rendered for the penalty of a probate bond, given by the defendant, as surety for the administrator on the estate of John W. Stevens, deceased; to which estate the said Betsey Nichols was one of the heirs.

The plaintiffs set forth as a breach of the condition of said bond, that there was a division of the estate, made by a committee, in pursuance of the statute in force at the time it was made, approved and recorded by the court of probate, and that the administrator has not paid the said Betsey Nichols her distributive share. There was a plea both of nul del record and navment. No ‘ evidence was given on the latter plea of any v J , i i r I-actual payment, but reliance was had on lapse oí time as presumptive evidence.

A copy purporting to be a copy of record Probate court was given in evidence under the first plea, and also the admission made by the administrator, a short time before his death, that there was a sum due to the said Betsey Nichols. The admission was made by the administrator, having a copy of this division, which was given in evidence before him, and on making an estimate of the sum due thereon to the said Betsey Nichols, upon this evidence, was objected to. The county court* rendered judgment for the'plaintiffs. The defendant objected to the decision of the county court, and the .cause comes here.

On those exceptions, several objections have been taken to the record, which would undoubtedly be fatal,, were this an appeal from the decree of the court of probate', accepting the doings of the committee and making an order for recording the same. The proceedings were evidently informal, and should have been made more full and more explicit before accepted. It appears however to have been made in pursuance of the statute, or at least of the practice under the statute at that time, and as formal as many of the proceedings of the courts of probate at that day.

In examining those proceedings, we cannot and ought not lose sight of the fact that many of our former records were kept somewhat loosely; each court of probate adopted a form for-itself, and there were nearly as many as there were judges of probate. It is our duty therefore, in relation to their proceedings, to give effect to them where we can, and not be too scrupulous in testing them by those of the present day, where there is more regularity in the forms and proceedings.

In this case there appears to have been a division made by a committee, and recorded by the court of probate, which was all that was required. The committee had undoubtedly evidence before them of the amount and value of the estate, more than appeared from the inventory first returned by the administrator. It was probably one of those estates which consisted principally of money or securities for money; and the administrator did not attempt to enumerate the securities, or name the amount of money in the inventory by him returned.

We cannot for a moment suppose, that that the committee would have made a division, charging the administrator with the payment of money, if there was no evidence that the same w<is in his hands, or that the judge of probate would have permitted such a division to be recorded, or that the administrator would have rested easy withóut taking an appeal. Whether a committee was necessary for the purpose of dividing this estate, or that part of it which consisted of money, is not a question of any importance.

If a court of probate adopted that mode for a division, and the heirs and administrators acquiesced therein, it was undoubtedly good. Indeed all the objections which have been urged to this record, even if well-founded, would only show the proceedings of the judge of probate to be erroneous and not void. It is further to be remarked, that it is over twenty years since this division was made. The heirs cannot now ascertain of what the estate did consist, as the administrator is dead. To require a further settlement, or any further testimony from them, would be to deprive them of all remedy.

This would be manifestly unjust, when we find that as late á's 1827 the plaintiff and administrator were together, and having this division before them, made an estimate of the sum due to Mrs. Nichols for her share, and the administrator then ascertained and admitted there was a sum of three 'hundred and nineteen dollars due her.

This rebuts every presumption or inference which has been attempted to be drawn in the argument, that the administrator was, by the committee, charged with real estate, or furniture as money, and shows most evidently, as the plaintiffs contend, that the real estate and furniture was received by the other heirs, and that this was well understood and' amicably settled at the time, leaving for the plaintiff, Mrs. Nichols, who was then a minor, the sum admitted by the administrator due in money, over and above her share in the furniture.

This division having been recorded by the judge of probate, having been acquiesced in so long, and recognized so recently by the administrator, we have no doubt that it was properly received in evidence in the plea of ml tiel record, and every presumption of payment by the administrator arising from lapse of time is repelled. The judgment of the county court is therefore affirmed.