An objection was taken to the charge of the judge on two points in respect to damages.
1. The plaintiff insisted, that he had a right to recover the sum of 175 dollars, as the price of a certain parcel of land, sold by the executor, in Middletown, under an order of the court of probate ; and that the executor had not accounted for the money. The defendants objected to this item of damages, on the ground that the order was void, and therefore, the land remained the property of the heirs of the deceased.
The order was claimed to be void, because it did not appear, on the face of it, what the amount of the debts and charges was, nor the value of the personal estate ; and therefore, it could not be ascertained, that there was a deficiency of this fund : Also, that the real estate could not be sold for the payment of legacies. The court, at the circuit, felt itself bound by the decision of the case of Brown & al. v. Lanman, 1 Conn. Rep. 467. and directed the jury to allow that sum against the defendants.
The order of sale in that case was as follows: “ James Lanman, Esq. administrator of the estate of David W. Barber, late of Norwich, deceased, has exhibited a statement of debts due from said estate, by which it appears necessary to dispose of the real estate of the deceased for the payment of the same : this court doth, therefore, empower and direct said administrator to dispose of the real estate of the said deceased, either at public or private sale, as he shall judge best, giving proper notice of the time and place of said sale, give a proper conveyance to the purchaser, and make return to this court.” — The court say, in giving their opinion, that the court of probate “ had jurisdiction of the matter in question, and the order of sale is valid on the face of it.” The judge supposed, that the principle of that decision was applicable to this case ; and that he was bound by it. The question of the powers of inferior courts of limited jurisdiction has been several times of late before this Court; and decisions have been made, which go a great way to impugn the doctrine of Brown v. Lanman. *22Thus, it was decided, in Griffin v. Pratt, 3 Conn. Rep. 513., the replication to a plea of performance in an action on a probate bond, that the administrator caused the estate of the deceased to be represented insolvent; and after the debts had been ascertained by commissioners, the court of probate gave orders to sell all the estate &c. was an insufficient averment of the facts necessary to authorise a sale. A principle analogous to this was adopted, at the last term of this Court, in the case of Willard, v. Killingworth Borough, 8 Conn. Rep. 247. And again, at the present term, in the case of Starr v. Scott, 8 Conn. Rep. 480. The result of our examination of this question, is, that as the court of probate has no jurisdiction over the real estate of a deceased person, except where the sale of it becomes necessary for the payment of debts, and that it shall be lawful for the court to order a sale only where the debts and charges allowed by him, shall exceed the personal estate, and then only for the excess, it is essentia] to the validity of such an order, that those facts should appear on the face of the order.
This order was, also, for the payment not only of debts, but legacies. It did not appear, that these legacies were charged on the real estate; nor that the deceased had not personal estate sufficient to pay them. Swift v. Edson, 5 Conn. Rep. 531. Tested by these decisions, the charge of the judge was incorrect, and a new trial must therefore be granted, unless the plaintiff will remit of his damages 175 dollars; and in that case, a new trial will be denied.
2. It was insisted, by the plaintiff, that the amount of the inventory made out by the executor under oath, agreeable to the provisions of the statute, consisting of the produce of the farm for the year 1827, and the stock on the farm, was justly chargeable against the defendants; and that the appraised value thereof, so far as it had not been accounted for, must be recovered. The defendants urged, that as the executor had been on the farm during the year, and had contributed his time, labour and money towards raising this produce, and purchasing and raising the cattle, &c. he should be allowed a reasonable compensation ; and that such sum should be deducted from the appraised value. The court instructed the jury, that if there was no mistake, in point of fact, in making out the inventory, then the produce and stock must have been placed there, either for the purpose of keeping it out of the way of his own credit*23ors, it .having been proved that he was a bankrupt, or from a consciousness that he was indebted to his father in amount; and that in either case, he could not reclaim the property, but must be responsible for it, in this action.
1 see no error in this charge. The only plausible ground assumed by the defendants, is, that the labour, time and money of the executor, ought, in some way, to be paid for. If this be so, and I do not deny it, obviously, this account must be settled, by the executor, with the court of probate. It is impossible to sustain the position, that in an action on the probate bond, the executor or administrator can bring in claims, by way of set-off, which are properly cognisable by the judge of probate.
It is said again, that this question should have been left to the jury. It is not easily seen, that there was any question, except a question of law. It was faintly suggested, that the surety, Tracy, cannot be liable for this property ; for it might have been shown, by him at least, that this property did not belong to the deceased. It maybe sufficient to remark, that the liability of the surety is coextensive with that of the principal. For this purpose, the statute required that every executor and administrator should procure a surety.
Let there be a new trial, unless the plaintiff will remit, &c,
The other Judges were of the same opinion.New trial to be granted nisi,