Opinion
No. 4920.
Submitted April 5, 1961.
Decided May 31, 1961.
1. An endorser on a writ instituting suit on a probate bond (RSA ch. 565) is entitled to recovery only upon claims which are admitted or liquidated and where the liability of the fiduciary to pay its claim is established.
2. Where an endorser in such an action had already recovered a judgment in the Superior Court adjudicating that the fiduciary was indebted to it in an amount certain its claim was liquidated and required no further determination by the probate court and it was the function of the Superior Court to "examine and ascertain" the endorser's claim under the bond as forfeited and render judgment for the amount so ascertained as required by RSA 565:10.
ACTION OF DEBT, under RSA ch. 565, on a probate bond given by the widow, Ida P. Shea, as executrix of the will of John R. Shea, late of Littleton. The writ was endorsed by the United States of America for a claim based on a judgment in the United States District Court against Ida P. Shea as executrix. This judgment is for a specified amount for a federal tax liability incurred before the death of John R. Shea and for a separate amount for federal taxes incurred after his death in connection with the operation by Ida of the laundry and cleaning business owned by John at his decease, after she had been denied authorization to do so by the probate court. The writ was also endorsed by the State of New Hampshire, Department of Employment Security, for a claim based on a judgment of the Superior Court in the amount of $267.65 against Ida as executrix for unemployment compensation contributions due under RSA ch. 282, as amended.
The Court ruled that the judgment of the United States District Court was "incontestible in this proceeding" and that "neither can the defendant attack collaterally the judgment of the Superior Court." The Court also ruled as follows: "The Judge of Probate is therefore given judgment for the full amount of the penalty, but the amount for which each endorser is to be entitled to execution must await determination by the Probate Court of the amount with which the executrix is chargeable upon the settlement of the account. Lisbon Bank v. Moulton Estate, 91 N.H. 477, 479."
The State of New Hampshire filed a motion to amend that part of the Court's decision quoted immediately above to have it read "The Judge of Probate is therefore given judgment for the full amount of the penalty. The case will now be heard in equity on the forfeiture above ordered for the purpose of ascertaining the claims of the indorsers on the writ. RSA 565:10."
The State's exceptions to that part of the Court's decision which is contrary to the tenor of its motion to amend and to the denial of said motion were reserved and transferred by Grimes, J.
James M. Riley, Jr. and Edward F. Smith for the State of New Hampshire, Department of Employment Security.
Wiggin, Nourie, Sundeen, Nassikas Pingree for defendant, furnished no brief.
Suits upon probate bonds can be maintained only by reason of and in accordance with statutory provisions. Judge of Probate v. Company, 94 N.H. 177, 179. RSA ch. 565 which prescribes the procedure for such suits provides in pertinent part as follows: "9 FORFEITURE. When it shall appear, upon confession, verdict, demurrer or in any other way, that the penalty of the bond is forfeited judgment shall be rendered against the defendant for such penalty; and such judgment shall be security for all parties interested. 10 JUDGMENT. Upon a hearing in chancery on such forfeiture, the court shall examine and ascertain the claims of the parties whose names are indorsed on the writ; and judgment shall be rendered for such parties respectively for the amount so ascertained . . . . "
To obtain judgment in the suit upon the bond, the State, as an endorser, must show the liability of the executrix to pay its claim. Lisbon Sav. Bankc. Co. v. Moulton's Est., 91 N.H. 477, 479. In general all claims, unless admitted, must be liquidated before they can be recovered upon a probate bond. Probate v. Adams, 49 N.H. 150; Judge of Probate v. Lane, 51 N.H. 342.
Plaintiff's claim in Lisbon Sav. Bank c. Co. v. Moulton's Est., 91 N.H. 477, was unliquidated and its validity and amount had to be determined first by an accounting in probate court which had sole original jurisdiction thereof before a judgment could be rendered in chancery. Although the proceedings in the Lisbon case were under what is now RSA 556:28, if the plaintiff had been an endorser on a probate bond it would have had to await a determination of the amount of its claim by the probate court before judgment could have been rendered under RSA 565:10. Judge of Probate v. Lane, supra, 345.
However in the case at bar the State had a judgment of the Superior Court adjudicating that Ida P. Shea, executrix, was indebted to it in an amount certain. Its claim was liquidated by a judgment at law which the Trial Court found could not be attacked collaterally. There was nothing to be determined by the probate court as to the validity and amount of this claim. See Judge of Probate v. Lee, 72 N.H. 247, 248; anno. 119 A.L.R. 83, 111. It was therefore the function of the Superior Court to "examine and ascertain" the State's claim and to render judgment for the amount so ascertained as required by RSA 565:10.
Exceptions sustained.
DUNCAN, J., dissented; the others concurred.