Appeal of Mallory

• Decision Date: 12 September 1892
• Parties: Appeal of MALLORY.
• Court: Connecticut Supreme Court

25 A. 109

62 Conn. 218

Appeal of MALLORY.

Supreme Court of Errors of Connecticut.

Sept. 12, 1892.

Appeal from superior court, New London county; Thayer, Judge.

On application of Benjamin E. Mallory for the appointment of an administrator de bonis non, with the will annexed, of the estate of Charles Mallory. From a judgment of the superior court directing the appointment the appellee appealed. Judgment affirmed.

J. Holsey and 1. Lucas, for appellant.

H. A. Hull and Tracy Waller, for appellee.

FENN, J. Charles Mallory, late of Stonington, died in 1883, leaving a will, whereby he appointed his four sons, Charles H. Mallory, David D. Mallory, George W. Mallory, and the original appellant, who is the present appellee, Benjamin E. Mallory, executors. By an agreement between the sons, Charles H. Mallory alone qualified. He entered upon his duties, and in January, 1889, filed his final account, which showed the estate insolvent, and a balance of $32,918.42 due the executor there from for moneys paid in settlement of claims in excess of assets. This account, after due notice and hearing, was approved, and from the decree approving the same Benjamin E. Mallory appealed, and during the pendency of the appeal, on March 21, 1890, Charles H. Mallory died. The present appellant, Henry R. Mallory, is his executor. He has never been cited as a respondent on the appeal, nor has the same been revived since the death of Charles H. Mallory. The application of Benjamin E Mallory, made on April 7, 1890, for the appointment of an administrator de bonis non, with the will annexed, of the estate of Charles Mallory, was denied by the court of probate on May 14, 1890, and Benjamin E. Mallory appealed to the superior court, which court found that David D. Mallory, Benjamin E. Mallory, and George W. Mallory were indebted to the estate as follows: Said David D. Mallory, in the sum of $52,659.64, with interest; said Benjamin E. Mallory in the sum of $48,104.84, with interest; and said George W. Mallory in the sum of $27,410.51, with interest; and that these debts were duly inventoried as a part of the estate. In the administration account, upon a list of the choses in action filed therewith, there was marked opposite these items. "Refuse to pay, because of inability." It was found that the claim against David D. Mallory was a valuable asset of the estate, and that the same was never converted or administered upon by the executor. It was claimed by the appellant, Benjamin E. Mallory, that Charles H. Mallory was also indebted to the estate to a very large amount, more than sufficient to render the estate solvent, which was never inventoried, nor in any way accounted for; and it was admitted that the estate of Charles H. Mallory was abundantly able to respond for any amount due from it. It was also claimed that there was other personal estate not lawfully accounted for, and not administered upon. Upon the validity of these claims the court did not pass. To the evidence offered by the appellant, tending to prove that there was estate of Charles Mallory not administered by the executor, objection was made, on the ground that it contradicted the record of the court of probate, showing the settlement of the "account. The court overruled the objection, and also the various claims of law made by the appellee in that court, and rendered judgment reversing the decree of the court of probate.

From this Judgment the original appellee, Henry R. Mallory, appealed to this court.

The six reasons of appeal are. In effect, and may be treated as, two. First, it is asserted that the court erred in not holding the decree of the court of probate approving and allowing the administration account coneusive, the record thereof a bar, and evidence as to assets unadministered as contradicting such record. That the decree of a court of probate, having jurisdiction, while unreversed, is final and conclusive as to all relevant matters embraced therein, is unquestionable. Indeed, that "no order made by a court of probate upon any matter within its jurisdiction shall he attacked collaterally, except for fraud, or set aside, save by appeal," is now the direct mandate of the statute, (Gen. St. § 436,) which was made in affirmance of the existing common law. If, therefore, the present proceeding is, as asserted, merely an attempt to collaterally attack such a decree, it must fail, for we agree with the...