Terry, C. J., and Field, J., concurring.
This appeal is from an order of the Probate Court discharging an administrator, and allowing his account.
The proceedings out of which this appeal grows, seem to be singularly irregular. It will be necessary to give a brief history of them, in order to an understanding of our decision.
In 1856, respondent was appointed administrator of one Hiram Pond, deceased, who died intestate in the year 1854. On the 23d of September, 1856, the administrator filed’ in the Probate Court his account for final settlement, and Edward Pond, the father and heir of the deceased, contested the account, and filed written exceptions. The account set forth that no property of the estate had come into the administrator’s hands, and no claims had been presented against the estate; that the administrator had incurred much expense in endeavoring to find property, without success, and prayed to be discharged. The appellant appeared and filed certain exceptions to the account; all of which went to show that there was a balance due to the estate from a partner of the deceased, which sum the administrator had failed to reduce -o his possession. These exceptions constituted the issues of fact; they were certified to the District Court. To the account of the administrator was attached a statement, made by the surviving partner, of the indebtedness due to deceased. This statement, it seems, was given to the administrator by the surviving partner, on the demand of the former. The contestation of the appellant seems to attempt to put in issue the correctness of this account, alleging that the amount of the indebtedness was greater than as set forth in the statement.
After the issues were brought into the District Court, a trial was had, and a finding by the jury upon each; whereupon the Judge rendered Ms decision thereupon, hereafter quoted, in which it was declared that the surviving partner was indebted to the deceased partner in the sum of $-. These proceedings were certified to the Probate Court, and a motion made in that *500Court to render judgment upon the basis, and in pursuance, of this decision and these findings. But the Probate Court, giving effect, as it construed them, to the findings as ascertained facts, refused to give effect to the decision and judgment of the District Court. It discharged the administrator, and found no sum due from Aaron Pond to the estate of the deceased.
The error of the appellant, and of the District Court, which pervades this whole case, lies in mistaking the office of an issue from the Probate to the District Court. There is no relation of inferiority in the constitution or powers of the former Court, as respects the District Court. They are unlike; but, within their respective spheres, not unequal. They are both Constitutional Courts. ¡No appeal lies from one to the other. Issues of fact are sent from the Probate to the District Court, not as from an inferior to a superior tribunal, but for the sake of convenience, because the Probate Court has not the machinery of jury trial and its incidents. But it was never intended to transfer any portion of the jurisdiction of Probate Courts to the District Courts. The jurisdiction is given by the Constitution .to the' Courts of Probate, as jurisdiction over common-law matters is given to the District Courts. The statute of 1855, directing those issues, was not designed to make the judgments of the District Courts binding upon the Courts of Probate. The Probate Court does not lose its jurisdiction over a subject of which it has taken cognizance by adopting the proceeding of an issue whereby to determine the issue advisedly; the finding of a jury is merely in aid of its jurisdiction, by settling the facts, and thus furnishing the material upon which it is to act. The District Judge, in trying an issue, necessarily decides the legal questions arising upon the trial, and regulating the admission or rejection of testimony. But after the finding his functions cease. It might be conceded—though this is very questionable—that he may grant a new trial, but he can do no more. He is not in the exercise of an original, but of a special jurisdiction, given him for a special and limited purpose. He is to certify back the findings, which then become a part of the record of the Probate Court. It is not necessary to decide whether these findings are conclusive of the facts they ascertain, or whether they are only advisory. It is enough for the present purpose to decide that they do not authorize a withdrawal of any portion of the jurisdiction of the Probate Court, by giving a power of rendering a final decision or judgment to the District Court upon the findings. If the Legislature had intended to divest the Probate Court of, and invest the District Court with, such partial jurisdiction, it would have been done in plain terms; but, certainly, in the absence of a very apparent intention, the absurdity can not be attributed to it of dividing a case into fragments, and ap*501portioning different parcels of it to different Courts, to be decided piecemeal at different times.
The District Court, by virtue of its common-law powers alone, derives its power to try issues of fact, and that Court, as a Court of Law, has no jurisdiction over probate matters. Its jurisdiction over matters of account and the like, is derived from its grant of equitable power in the Constitution, and in that respect it has only concurrent jurisdiction with the Probate Court. But, obviously, it would not be competent for the Legislature to delegate to the District Court, as a Court of Law, a supervisory power over the proceedings of the Probate Court, or to assume cognizance or control over any appropriate and peculiar subjects of probate jurisdiction; and it follows, of course, that the District Judge, sitting on the trial of an issue of fact, and thus exercising mere common-law jurisdiction, can not take to himself* a right of final judgment over the subject of an account or its settlement, belonging to the Probate Court. Whatever the meaning of the statute of 1855 may be in that portion of it which declares that the District Court shall transmit the findings of the jury and its decision to the Probate Court, it can not mean that the District Court—at all events, in a ease like this—can go beyond the verdict, and extend its operation by disposing of the subject-matter of the findings. Mor if by mere implication, from the use of this term “ decision,” we were convinced that this was the intention, would it be competent for the Legislature to give the power.
In this case the District Court passes beyond the findings, and seeks to give effect to them by a decree virtually settling the partnership account of Aaron Pond and Hiram, and finding the former indebted to the estate of the latter. Aaron Pond was no party to the proceeding. Of course, this action of the Court did not bind him, and because the jury found that the account of these partners was different from that supposed by the administrator and reported by Aaron, the costs of the proceedings were visited upon the administrator. The Court, after reviewing the findings of the jury, concludes as follows: “The report of the surviving partner shows that he has collected, since the death of Hiram, of the firm accounts, etc., the sum of $2334 82. Add to this the $1102 84, mentioned in the second finding above, and it shows the sum of $3437 66 of the joint effects of Hiram and A. H. Pond unaccounted for and unadministered, and the judgment of the Probate Court should be rendered to the effect that the final report and settlement of the administrator be rejected, and said administrator ordered to proceed and administer said assets, and that the costs of the trial and proceedings in the District Court, etc., be paid by said administrator out of his individual funds. Said costs will be taxed by the clerk of this Court and remitted, with these proceedings, to the Probate Court.”
*502We think the Court erred in thus passing upon the matters found by the jury; it was for the Probate Court to determine the effect of the facts so found, and not for the District Court to dictate to it the appropriate action.
The Probate Court, therefore, did not err in proceeding to settle the account of the administrator upon its own judgment as to the effect of these findings, and we do not perceive that it has committed any error in the judgment it has rendered.
We have waived the discussion of the question presented by the argument, whether the mere failure to return an unliquidated claim like this by the administrator for its full amount (no fraud or intentional concealment or falsification of facts being shown—but the administrator acting in good faith,) creates any liability against him, or constitutes any proper matter for an issue under the statute. Pi or whether the administrator, having no funds, is bound to undertake a long and expensive litigation to settle a partnership account, at his own expense, if he fails to recover, when he believes, and has reason to believe, that nothing is due to the estate of his intestate.
It seems to us that the argument of the respondent, founded upon the irremediable hardship of the case, if there is indebtedness from the surviving partner to the estate, is unfounded. The resignation or discharge of the administrator need not affect the interest of the heir. The heir, or any one else, may take out new administration, file a bill in equity in the District Court for a settlement of the partnership account, and recover whatever balance is due from the survivor to the estate of deceased. In this way, and in this way only, can the fact or amount of indebtedness by Aaron to Hiram's estate be ascertained; and these proceedings in the District and Probate Courts, Aaron being no party to them, constitute no bar, and can have no effect on such a proceeding.
The decree of the Probate Court is affirmed.