Atwood v. Lockwood

• Citation: 76 Conn. 555,57 A. 279
• Parties: ATWOOD v. LOCKWOOD.
• Decision Date: 03 March 1904
• Court: Supreme Court of Connecticut

57 A. 279

76 Conn. 555

ATWOOD

v. LOCKWOOD.

Supreme Court of Errors of Connecticut.

March 3, 1904.

Case Reserved from Court of Common Pleas, Fairfield County; Howard J. Curtis, Judge.

Action by D. Preston Atwood against George L. Lockwood to recover statutory penalties for defendant's neglect to make and return an inventory of his intestate's estate. Case reserved, on an agreed statement of facts, for the advice of the Supreme Court of Errors. Judgment for plaintiff.

Jeremiah D. Toomey, Jr., for plaintiff. J. Belden Hurlbutt and Leo Davis, for defendant.

TORRANCE, C. J. The material facts in this case are, in substance, these: In April, 1893, Ann Amelia Smith, a resident of Norwalk, in this state, died in that town, leaving an estate there. In May, 1893, the defendant, Lockwood, became the duly qualified administrator of the estate of said deceased, and continued as such up to the date of the institution of this suit, in August, 1899. Said administrator never filed any inventory whatever of said estate as required by law. "There is no record of any excuse being accepted" by the court of probate for such failure to file such inventory. "The defendant was excused orally and informally by the judge of probate from filing said inventory, although there was no formal application for such excuse, nor any hearing thereon, nor any record thereof." It is agreed that if, under the pleadings in this case, the foregoing fact "can be shown on a trial by the oral testimony of the defendant, against any objection that the plaintiff could make, the same should be considered a part of this finding; otherwise, not." "In the event of said oral testimony in re excuse being admitted, the plaintiff desires to note an exception to the ruling of the court in admitting said oral testimony." The plaintiff claims to recover "judgment for $20 per month for 12 months, or $240, and costs, as provided by law." The defendant claims that, as "said suit was not begun within one year after said penalty began to accrue, the plaintiff is not entitled to recover anything," and that "said excuse is an absolute bar to the plaintiff's recovery."

The statutes under which this action is prosecuted required the defendant to deposit an inventory of the estate of his decedent in the court of probate "within two months after the acceptance of his bond" as administrator (Gen. St. 1888, § 578), and provided, further, that in case of his failure to do this he should forfeit, to him who should sue therefor, $20 for each month until he should return such inventory, unless before suit be brought he shall make excuse for such delay acceptable to the court (Gen. St. 1888, § 579). The defendant failed to comply with the first of these requirements up to the time when this suit was brought; but he claims that he is protected by the saving clause in the last of the above sections, and whether he is so protected is one of the questions in the case. The answer to this question involves the construction of the saving clause in question.

A clause of this nature has been upon the statute book for nearly 200 years. Revision 1808, p. 263, note 3. In Acts and Laws 1784, p. 52, it appears in this form: "Without just excuse made to the judge of said court and accepted for such delay." In Revision 1821, p. 202, tit. 32, § 14, it reads thus: "Unless he can make a just excuse for such delay, satisfactory to said judge of probate." In this last form it continued down to Revision 1875, p. 387, tit. 18, c. 11, § 2, when it appeared in the form which it has since retained, and as it appears in section 579 of the Revision of 1888, and section 324 of the Revision of 1902. Since 1875 the statute has required the excuse to be accepted, not, as before, by the judge of probate, but by the court of probate. This implies that the matter constituting the excuse shall be presented in some way to the court of probate, and not merely to the judge; that the court shall act upon the matter so presented, after the manner of a court, upon a hearing; that the court has power to reject, as well as to accept, the excuse; that such acceptance or rejection is a judicial act; and that, as such, it shall be duly recorded upon the court records. Such an...