N. F. Allen vs. Samuel Hubbard, 8 N.H. 487

Richardson, C. J., delivered the opinion of the court. It is manifest that the appellee in this case has received $340, for which he ought to have accounted, but for which he has not accounted. And if the heirs are not precluded by what has heretofore been done in the probate court, they are justly entitled to claim, and to have, two thirds of that sum, which is $226.67. The question then is, whether any thing has been done in the probate court which is conclusive upon this subject?

It is not to be doubted, that a decision by a judge of probate, regularly made upon a matter within his jurisdiction, is conclusive against all the world. 6 N. H. R. 116, Bryant vs. Albee. It has been settled, that the decisions of the judge of probate can be proved only by a record of his proceedings. 3 N. H. R. 309, The Judge of Probate vs. Briggs. In this case the appellee rendered an account of rent received, but he did not render an account of the whole amount received.

It does not appear that there was any controversy on the subject when the account was allowed by the judge, or even that his attention was called to the subject. It must be presumed that the sum omitted in the account was omitted by mistake and misapprehension, and that the mistake was not discovered by the judge, merely because the subject of the rent was not particularly examined by him, there being no objection in relation to the account of the rents.

But in order to make the decision of the judge of probate conclusive on the subject, it should appear by the record that a claim was made before him to charge the appellee with the money omitted, and that the claim was disallowed. If this appeared of record it would be conclusive.

We are of opinion that wherever there has been a manifest mistake in an account settled in the court of probate, it. is competent to the judge of probate at any time before a 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. Mistakes will sometimes unavoidably occur, and it is just and reasonable that they should be thus corrected. 9 Pick. 27, Stetson vs. Bass; 1 do. 157, Stearns vs. Stearns; 14 do. 105, Field vs. Hitchcock.

The cause must be sent back to the judge of probate, with directions to reexamine the accounts, and correct all errors in respect to which there does not appear to have been a particular adjudication.