dissenting. I do not agree with my brethren in the •disposition of this case. Chapter 103 R. L. establishes a Probate Court and section 2018 gives it full and exclusive jurisdiction in the settlement of estates. Chapter 108 provides that the court shall appoint commissioners to adjust claims against .an estate. There must be an administrator to administer the estate; he represents it in all suits and upon all occasions, he .stands in place of the estate and is nominally and practically the party. Section 2125 provides that a person having a claim •■against a decedent, proper to be allowed by the commissioners, who does not, after publication of the required notice, exhibit .his claim, shall be barred, from recovering it, or pleading the same in offset. Is the personal claim of an administrator within this section ? Is it a proper one to be presented to, and allowed by, the commissioners? No valid binding judgment can be rendered by the court upon the report of the commissioners upon such a claim. It logically follows that if the report cannot serve as the basis of a binding judgment, the claim need not be presented. It not being a claim proper to be allowed, it is not within the statute. I can come to no other conclusion. The necessary result of the holding of the court is, that a party may sue himself, for should a creditor or other interested party .appeal from the allowance of such a claim by the commissioners, the proceedings must be in the name of the administrator against himself, R. L. s. 2275. He must give security to himself, s. 2274, and can obtain judgment and an execution in his own favor against himself. O'Hear v. Skeels, 22 Vt. 152.
If there were no statute provisions for the allowance of claims by commissioners, does any one doubt but that the Probate Court under the full, and exclusive jurisdiction given it to settle estates would have ample power to adjust any claim against the estate ? And no particular provision being made for the settlement of such claims, they not being “ proper to be allowed,” I think the adjustment of such a claim is within the *266power of the court, and in so. doing there is no invoking the aid of the common law, as intimated by the court. It may be true-that this question has never been decided by this court; in the first century and more, of its existence, no counsel have been found bold enough to raise the question, and this fact is quite significant. A long course of practice, under a statute, is of great force in giving construction to it. A person is often appointed administrator because heavily interested as a creditor of the-estate; and it has been the constant practice of the Probate Courts, sanctioned by long usage, to adjust such claims upon-the settlement of the administrator’s account, notice of the personal claim of the administrator being included in the usual notice required by the statute; and although the judges of the Probate Courts are sometimes laymen, they often evince an intuitive knowledge of the law, and invariably sound common sense. The views herein expressed were those of that learned jurist, Redfield, Ch. J., French v. Winsor, 24 Vt. 408, note, and they have the-authority of the State itself in the publication of the head-notes to the case and its digest; Roberts’ Dig. 323, s. 78; and such was the view of one of great experience in the administration of the probate law in this State, Walker, J., as expressed in consultation upon the first hearing of this case, but who resigned before the final one. As well might one insist that' a judge can try his own case as that an administrator can defend in a suit in which he is plaintiff. There is practically but one-party to such a suit. . I do not think an administrator should be made chargeable with interest, unless he receives interest on the-fund, uses the fund himself, or is guilty of negligence in respect to it. In this case the commissioner reports that the executor-did not act with reasonable prudence, as there were banks of deposit easily accessible where he could have received four per cent, interest. I think it fair to say upon the report that the executor received no interest, did not use the money, but kept it,, as he thought he might be called upon at any time to settle the account and pay over the money. Whether, negligence could be based upon his neglect to deposit the money in some interest' *267paying bank, depends upon whether it was his duty to so deposit it; I do not think it was and therefore negligence cannot be predicated upon such neglect. I think more danger will arise front permitting an administrator to invest funds, than can be compensated by any interest from investments. An administrator is under no duty to invest funds ; he should not. do it; his business is to settle the estate and pay it over to the rightful parties, not speculate with it by way of investment. I think the disposition of this case is not within the rule which the court says is the just one, cited from Stearns v. Brown, 1 Rick. 531: “The general, principle is that administrators are not chargeable with interest' for money remaining in their hands, unless they loan it and' receive interest, or make some profitable use of it, or unreasonably detain it;” for it does not appear that the executor loaned the money, received any interest upon it, made any use of it,, nor unreasonably detained it; the latter phrase meaning, detaining it from the parties entitled to it after it was his duty to pay-it to them.
I would reverse the judgment.