Rowland v. Smith.

by the plaintiff as collateral security for the liability he might incur by indorsing the note in suit."

Therefore, in legal effect, Elias Smith became and may be spoken of as an indorser after Smith & Co. and before the plaintiff upon the note in suit; for he was not required, and did not intend, to protect the first indorsers from liability; nor did he do it. The mortgage was demanded by and given to the plaintiff solely; whatever of security it afforded was his individual property, to be retained or surrendered at his pleasure without accountability to any one. Assuming it to have been valid, his release of it is no answer to his claim. Believing it to be useless, he naturally desired to secure himself by another. Elias Smith was willing to make an effective one in pursuance of his agreement to give security, hoping perhaps thus to induce the plaintiff to institute his suit against Smith and Co., the first indorsers, rather than against himself, the second. To that end he was willing to become principal promisor upon a note to the New Milford Savings Bank, to secure that note by a mortgage not to be doubted, and to permit the borrowed money to remain in the keeping of Rowland. Concerning this last point, the finding is that "there was no understanding or agreement that the money received by Rowland from said bank was to be applied by him in payment of the note in suit. The amounts received by the plaintiff are still held by him, and he is still holden to said bank for the payment of said note of $2500." This is in effect a finding that both purposely abstained from making it a payment of that note, and that the money by their joint agreement remained in the hands of Rowland as a depositary until they should make a final disposition of it; an arrangement possible both in fact and law; and I do not think that the reception of it in this form should bar him from a recovery against the first indorser.

The effect of the advice given by this court is to remove from both the maker and first indorser of an accommodation note, who received and retained the entire avails thereof, all liability, and impose it, with the added burden of a bill of

Lawrence's Appeal from Probate.

costs, upon the second indorser, who has never had any benefit therefrom, and whose hope for relief must rest upon one or more suits against insolvents.

I think that the holder of the note should be allowed to enforce payment upon either the maker or indorser at his pleasure. If he is paid by Smith & Co., first indorsers, he ceases to have any claim upon Elias Smith. He must of course return to Elias Smith the $2000 specially deposited by the latter with him. Elias Smith will then return it to the New Milford Savings Bank and redeem his farm. Crofut & Co. and Smith & Co., who borrowed money, used or kept it, will pay it back, and that without imposing a bill of costs upon Elias Smith; thus from one, and that the present suit, complete justice will result.

In this opinion LOOMIS, J., concurred.

MARGARETTA LAWRENCE'S APPEAL FROM PROBATE.

The statute (Gen. Statutes, p. 371, sec. 12,) which provides that on the refusal of an executor to accept the trust the court of probate shall commit the administration with the will annexed to the widow or next of kin, does not apply to the case of a non-resident testator having estate in this state.

The court would, as a matter of course, concede to the executor of the will the right to prove the will in this state and would appoint an administrator with the will annexed only in case of his intentional refusal to act.

But this intentional refusal need not be express or formal, but the court may find it in his silence and inaction.

Where a testator domiciled in the state of New York at the time of his death, left real estate in this state and creditors here, and the executors upon due presentment in that state refused to pay the claims of the creditors here, and paid all other claims and divided the remaining estate among heirs, taking there for that purpose the rents of the estate here, and omitted for eight years to prove the will in this state or give the creditors here any opportunity through them to reach the estate here, it was held that the probate court might properly find that the executors had refused to prove the will here.

The presentation by creditors here of their claims to the executors in

49 411

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Lawrence's Appeal from Probate.

another state, and their neglect upon refusal to take proceedings in the courts of that state, do not impair their right to the interposition of our courts in their behalf. Failing there, they had the right to enforce their claims through the more convenient process of auxiliary administration here.

The statute (Gen. Statutes, p. 372, sec. 3) which provides that administration shall not be granted after seven years, applies only to intestate estates. The appointment of an administrator with a will annexed is governed by the statute (Gen. Statutes, p. 371, sec. 11,) which allows ten years for the proof of wills.

Under the statute (Gen. Statutes, p. 375, sec. 1,) which provides that "the estate of any deceased person may be settled as an insolvent estate, if the court of probate deem it expedient," it is not necessary that there should be a special finding by the court that it is expedient, but the judgment of the court that it is so is implied in its orders.

Held to be no objection to an order for the sale of real estate here to pay debts, that there was personal property in the state of principal administration sufficient for their payment.

And that a court of probate had no right, as a matter of discretion, to refuse to order a sale of real estate here in view of the personal property there.

And that the long delay of the creditors in taking proceedings in this state was no objection to such an order of sale, so long as the time had not expired for proving the will.

And held that it was not necessary for the court to set out dower to the widow in the real estate here, under the statute (Gen. Statutes, p. 375, sec. 4,) because the widow had accepted in the courts of New York the provision made for her by the will in lieu of dower; and although that provision was the use of one third of the entire estate for life, it did not appear that the land here was any part of the third set to her or that she had any interest in it.

Where an administrator credits himself in his administration account in the probate court with the entire amount of the claims allowed by the commissioners, and asks for an order to sell land to pay the balance in his favor, it is to be taken as a method of informing the court of the amount to be raised by the sale and not as an assertion of actual payment.

The statute (Gen. Statutes, p. 395, sec. 42,) directs that all probate notices required to be advertised in a newspaper shall be "published in a daily newspaper, or, if there be none, in a weekly newspaper, published in the county where the court ordering the notice is held, and having a circulation in the probate district." Held that where the court ordered such a notice to be published "in a newspaper published in the county," but it was in fact inserted in a daily newspaper published in a city in the probate district and circulating in the district, the actual compliance with the law in the mode of publishing the notice rendered a sale of real estate under it valid, in spite of the defect in the order.

The statute (Gen. Statutes, p. 394, sec. 36,) provides for an order for the sale of real estate to pay debts "in such manner as shall appear to said

Lawrence's Appeal from Probate.

court to be most for the benefit of the estate." An order was made to sell "either at public or private sale as should be deemed to the best advantage." The sale was made at public auction. Held that this being the mode of sale favored by the law, the sale was good, without regard to the alternative character of the order, the question of the regularity of which was not considered.

A party wishing to contest before the Superior Court a claim allowed by commissioners on an insolvent estate, can do so only by appealing from the doings of the commissioners, and not by an appeal from the decree of the probate court accepting their report.

APPEAL from sundry decrees of the probate court of the district of New Haven in the settlement of the estate of John R. Lawrence; taken to the Superior Court in New Haven County, and heard before Hovey, J. The following are the principal facts in the case.

John R. Lawrence died in 1872, a resident of New York city, leaving property there situate largely in excess of his debts, and real estate in the city of New Haven, in this state. He was indebted to citizens of the latter city in excess of the value of the estate there situate.

He made his widow, son, and son-in-law executors of his will; they proved and executed it in New York. In 1877 the creditors resident in New Haven presented their claims in New York; payment was refused. On March 15th, 1880, they notified the son, then the acting executor with the assent of his co-executors, that on the 19th day of that month they should present a copy of the will to the probate court for the district of New Haven, and ask for the appointment of an administrator with the will annexed, for the purpose of applying the real estate in New Haven towards the payment of their claims. No one of the executors appearing, the probate court on the day named admitted the will to probate, ordered it to be recorded, and on March 29th, 1880, at the request of a creditor, granted letters of administration with the will annexed to William P. Niles, who accepted the trust and gave a bond with surety which was approved by the court. On the same day the court passed an order allowing him two months within which to inventory and appraise the

Lawrence's Appeal from Probate.

estate, and appointing appraisers ; an order allowing twelve months within which to settle it; an order for the appointment on April 5th, 1880, of commissioners to receive and decide upon claims; and an order requiring the administrator to cite all persons interested then to appear and be heard relative to such appointment, by advertisement in a newspaper published in New Haven. On April 5th, 1880, the probate court appointed the commissioners, prescribed the notice to be given of their appointment and of the times and places of their meeting, and allowed the creditors six months within which to exhibit their claims. On May 15th, 1880, the administrator returned the inventory and appraisal into court, and they were accepted and recorded. On September 15th, 1880, the tenant occupying the estate in New Haven gave notice to John Lawrence, one of the executors under whom he held, of all the proceedings in the probate court up to that date, and informed him that unless he attended to the matter at once the estate would go out of his hands. On October 6th, 1880, the commissioners submitted their report to the court, allowing claims to the amount of $20,259.86, which was accepted. On October 29th, 1880, the administration account was presented and allowed, the administrator crediting himself in it for the full amount of the claims reported, and on the same day the court ordered the administrator to sell so much of the real estate belonging to the deceased as would pay the debts with incidental charges of sale, either at public auction or private sale, as should be deemed to the best advantage, and make return of the order with his doings. thereon; notice of such sale to be given by advertisement in a newspaper published in New Haven County, and by posting a notice on the public sign-post within the same town nearest to the real estate to be sold, and to make return of the notice. Very soon after the making of these orders, and after a single advertisement in a daily newspaper published in New Haven, and having a circulation. within the probate district, the administrator sold the land to the tenant who held under the executors.