delivered the opinion of the Court. We think there can be no doubt of the right and authority of a judge of probate to open an account settled, for the purpose of correct ing a manifest mistake. In the proceedings of all courts errors and mistakes will occur, and frequently without the fault of either party, and justice requires that some method should be provided for the correction of such errors and mistakes, in whatever court they may occur. In courts of common law jurisdiction the remedy is by writ of error, motion for new trial or application for a writ of review ; but these remedies are no applicable to the proceedings of a court of probate. In that court, when a mistake is made in the settlement of an account, the course is to apply to the judge of probate for the correction of the mistake, by petition, or to state the amount claimed in a new account; unless when the mistake is discovered the party has a right of appeal, by which it may be corrected in this Court.
This practice seems to be well settled, and in several cases has received the sanction of this Court. It is indeed essentially necessary for the furtherance of justice, and ought not to be too strictly limited. Stearns et al. v. Stearns et al. 1 Pick. 157; Baylies v. Davis et al. ibid. 206.
The principal question then is, whether there is sufficient proof of the mistake made in the settlement of the account in the probate court, in March 1825, to sustain the decree of the judge of probate in this case. And we are of opinion that the evidence reported by the auditor, considering all the circum stances of the case, is entirely satisfactory.
The appellant’s counsel moved the auditor to go into the investigation of the administration account; which he declined, *31for reasons which appear to us sufficient. And there is an additional reason. If Eaton was responsible for any neglect of the administratrix in not fully accounting for the assets before his intermarriage with her, he clearly was not liable to account for it in the probate court, and in his character of guardian. The decision of the auditor, therefore, was unquestionably right.
It has been objected that the appellee, after the discovery of the mistake, and with a full knowledge of all the facts, acquiesced in the settlement and confirmed it. But the evidence falls far short of proving full knowledge of the facts. According to the testimony of Chapin, both parties had some reason to suppose a mistake had been made, when they met in Boston in April after the settlement; but they had no certain knowledge of the fact, and Stetson then agreed, that if the supposed mis take should be ascertained, he would rectify it. This seems conclusive proof that the matter had not then been fully investigated, and there is no proof in the case, to show that the appellee has done any thing which can amount to a waiver of his legal rights. Such a waiver, in all cases, must be proved by clear and conclusive evidence ; and especially when, as in the present case, the party to be concluded by it acts as a trustee for other parties.
And upon the whole matter we are of opinion, that the judge of probate is supported by the evidence, except as to the sum of $2-50 ; and it is accordingly affirmed with additional interest to the present time, deducting that sum.