The opinion of the court was delivered by
Redeield, J.The facts alledged in this bill, no doubt make, upon the whole, a considerable impression upon the mind, that the orator has really not done any thing worthy of severe reprobation. But in saying that, we should be mindful of the maxim audi alter-am pastera, or that one story is good, until another is told.
But in examining the case in detail, with a view to apply to it the exact rules of chancery law, it is not perhaps easy to say precisely how it is to be determined in the court of chancery, until the proceedings at law are closed, and it is thus made judicially to appear, that the orator is remediless, at law. We think it will be found upon investigation of the case in the court of probate, that the equity powers of'that court are altogether adequate to granting full redress.
The object of the bill, judging from the general scope of the stating and charging parts, as well as the specific prayer for relief, seems to be to take the whole matter of accounting between Calvin French and defendant, out of the court of probate, and adjust it in the court of chancery, and pass a final decree,- for the party found ultimately in arrear.
This is asked upon two grounds.
1. That the defendant has obtained an exparte decree of account in the probate court, by taking an undue advantage of a confidence existing between the parties, in regard to the matter.
2. That the whole matter is in the wrong probate district, and that the Rutland probate court have no jurisdiction.
In regard to the first ground for bringing the bill, it is now considered that the probate court, so long as the matter is pending either in that court, or in the common law courts, on the bond, have full power to re-examine any of their former decrees in the premises, and correct all errors, irregularities and mistakes.- And possibly, this power of re-examination extends even beyond this. Adams v. Adams, 21 Vt. R. 162. Rix v. the heirs of Smith et vice versa, 8 Vt. 365. 9 id. 240.
It seems to be taken for granted in the bill, that a decree in the probate court that an administrator ought to render his account, is *408a final decree, from which an appeal lies in the first instance. This is not regarded as a final decree in any other court, and we see no good reason why it should be, in the probate court. Such a decree, from its very nature, must be, to a great extent, interlocutory. It has been regarded as affording a sufficient basis upon which to predicate a suit upon the bond, given to secure the performance of the orders of the probate court. But it fixes nothing with certainty. There must be some hearing as to the amount due, either in the probate court, or in the common law courts, and in either case, the plaintiff’s liability may be reduced to a merely nominal sum, which would render it quite needless to pursue any redress in the court of chancery.
We see no reason to doubt that upon the facts stated in the bill being shown to the probate eourtj that court would give the party a hearing, and if so, we see nothing in the case, which would clearly transcend the power of that court to adjust. It would, we know, place the matter in a very awkward position to dismiss the plaintiff’s bill here, and then turn him out of court, in the probate court, on appeal. And to avoid the possibility of any such contingency, we shall probably require this suit to be retained in the court of chancery, until the proceedings in the court of probate are closed.
And if this were a case, where the party had clearly been deprived of his appeal, in due time, by fraud, accident, or mistake, the statute allowing a remedy, by petition to this court would seem to supercede the equitable jurisdiction, which has under very peculiar circumstances, been exercised in such cases.
If the court of probate and this court, upon the question being brought here, should hold, that the plaintiff in this case, upon a strict accounting, either as administrator, or attorney in fact, both of which matters, under the circumstances, must come into the same accounting, is not entitled to charge any considerable sums, which he has actually paid out for the benefit of the estate, or of his constituent, and solicits, in equity, ought to be re-imbursed, then' veryjjkely the plaintiff may be entitled to seek redress upon this bill.'* And did we now see clearly, that any portion of this bill *409came within that description of claim, we might determine now, that the bill is to go to a final hearing to that extent. But we do not perceive any claim in that shape. The amount paid by the orator or administrator, which was really due from the intestate, but not allowed by the commissioners, having never been presented before them, is the only part of the plaintiff’s claim which seems to afford any great difficulty, even upon his own showing. For we are not to suppose that any court could be so insane as to charge the plaintiff with the value of the furniture, and the few articles of personal use, by the ancestor, and which were bona fide kept for the heir, on account of the enhanced value growing out of that circumstance, as it was bona fide supposed by the administrator, and especially where the property so circumstanced had been handed over to the heir, and for years put to his use, without objection, after he come of full age. And if the probate court should actually charge the plaintiff, under these circumstances, and the decree should finally be affirmed in this court, we do not see how the party could have any redress, in a court of equity.
But in regard to the payments, made- by the administrator, of debts not allowed by the commissioners, his right to ask an allowance must, we should suppose, depend very much upon the state of facts, in the particular case or cases.
If the claim had been disallowed by the commissioners, there could be no question whatever, that an administrator who should presume to pay it could not charge it, at least if done after the right of appeal had lapsed. So too if the claim had become clearly and absolutely barred, by not being presented to the commissioners, so that there remained to the claimant no further right to petition the probate court to open the commission for allowing claims, if such a state of things ever exists, until after the final settlement and distribution of the estate, the administrator should not be allowed any discretion. And we do not intend to say that the administrator can in any case be allowed to charge for payment of claims not preferred ones, when not allowed by the commissioners.
*410But it occurred to us, during the argument, that if the administrator found a claim, not allowed by the commissioners, but which was clearly and notoriously due, and where no doubt could be entertained, the probate court would extend the commission for the purpose of giving an opportunity to present it,, and where no question could be made, that it would be at once allowed, if under such circumstances it should be paid in the utmost good faith, it would surely savor of extreme justice, that the administrator should not be allowed the payment in his account. And if a claim under these precise circumstances cannot be allowed the administrator in his account, in the probate court, it will certainly merit grave consideration, whether a court of equity ought not to decree some remedy. This is the only point of the case which looked to us like requiring any equitable interference with the proceedings in the probate court, and we are inclined to believe the powers of that court are fully adequate to afford relief here.
The second ground for bringing the bill, we suppose was settled in this court by holding the bond valid. And this we understand to have gone upon the ground that if the defendant did not object to the jurisdiction, the plaintiff who first sought it could not. But if there were no jurisdiction whatever in the probate court, it would not lay the foundation of any resort to a court of equity, as it seems to us..
Decree of chancellor reversed, and case remanded to the court of chancery, to be retained until proceedings are ended in the court of probate, and then, if the orator elects to proceed, the. defendant is to answer without terms, and if not, the bill is to be dismissed without costs.
It would seem, that one who is administrator of an estate, against which he has claims, may bring in his claims against ,the estate, on his final accounting in the probate court, or present them to the commissioners, at his election, since it has been decided in Adams v. Adams, 22 Vt. R. that an allowance of such claims *409by commissioners, is not in the nature of a valid judgment, the claimant also representing the estate. Probably the more convenient practice is to have such claims allowed by the commissioners, and nothing more was intended to be decided here, upon that point, than had been already decided in the case referred to.
Kedeield, J.