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ever it is not material for the plaintiff to describe precisely
the place where the beasts were taken doing damage, the
ground of his complaint being the unlawful impounding, I
apprehend the defendant may consider the place stated in the
writ to be immaterial, and in his answer may set forth and de-
scribe the place where they were actually taken so as to en-
title himself to recover damages for the injury done."

The result of the investigations which we have been enabled
to make is, that the prevailing course of the authorities re-
quire the pleader, in a declaration in replevin for property
distrained for rent, to allege the place of caption, in addition
to the town. We think, the law goes no further than this,
and we are not disposed to extend it, for we are not well sat-
isfied with the reasoning with which this law must be vindi-
cated, if indeed it be vindicated at all ; certainly very weighty
objections can be urged against it.

There is no error in the judgment complained of.

In this opinion the other judges concurred, except Set-
MOUB, J., who having been counsel in the case when at the
bar, did not sit



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AUGUST TERM, 18T0. 185



Tail's Appeal from ProtMlB.



David D. Tail's Appeal peom Pbobatb.

A court of probate has power to go behind die report of conumssionerB upon
insolrent estates, and m a rshal the general daims rqioned by them accordfaig
to such equities as may justly, npon settled principles of equity, give some
daims or classes of claims a preference over others.

A different role was established by the case of Hcichkia t. Beach, 10 Conn., 233,
and was followed until the decision in AshrMa^sApp&dJrom Probate, 27 Conn.,
241. The rule estaUished by the latter case should be adhered to that the law
may be settled.

The opinion in that case commented on, and some of the yiews in it dissented
from.

Tlie chanceiy powers of a court of probate are only such as are incidental, con-
nected with the settlement of a particular estate, and necessary for the adjust-
ment of equitable rights. A priority among creditors or benefidaries, to be
decreed by a court of probate, must be founded on a clear, definable and spe-
cific equitable right, recognized as such in equity jurisprudence, and which a
court of equity would enforce if the matter could be brought before it.

Where property held by an assigning debtor in trust goes into the hands of his
assignee in insolveney, the assignee holds it subject to the trust and the cred-
itors have no claim upon it

Appeal from a decree of the court of probate for the dis-
trict of Winchester ordering the payment in full of certain
claims allowed by the commissioners upon the insolvent estate
of Charles B. Coe, assigning debtor, before the payment of
other claims allowed by the commissioners ; taken to the Su-
perior Court in Litchfield county and tried before Minor ^ J.

The decree was passed upon the petition of David W. Coe
and others, who had presented claims to the commissioners
on the insolvent estate mentioned, and whose claims had been
allowed and reported by the commissioners with other claims
against the estate as general claims, no facts being reported
by the commissioners with regard to any equities afiFecting
the claims. The petition set up certain facts which the peti-
tioners claimed created an equitable right in favor of their
claims, which were described in the report as " notes of S. W.
Coe & Son," to a precedence over the other claims allowed
and reported and which were alleged to have been originally
the debts of the firm of Coe, Shenehon <t DeWitt, to which
firm Charles B. Coe, the insolvent, had belonged. The decree

Vol. XXXVII. — 24




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186 LrrOHPIELD COUNTY.

VaO's Appeal from Probate.

of the court upon the petition was as follows : " Ordered^
that whenever the assignee of said estate shall apply the
assets of said estate to the payment of the debts thereof, the
debts allowed by the commissioners as due to S. W. Coe &
Son, shall be paid in full before any application of the
assets of said estate is made in payment of any indebtedness
allowed by said commissioners as originally the debts of Coe,
Shenehon & DeWitt."

The following facts were found upon the appeal by the Su-
perior Court:

Previously to the 13th day of August, 1868, Samuel W.
Coe, and his son David W. Coe, were engaged in the transac-
tion of a general mercantile business in Winchester, Connec-
ticut, under the name of Samuel W. Coe <t Son ; and Charles
B. Coe, another son of Samuel W. Coe, was engaged in busi-
ness in the city of New York as a member of the mercantile
firm of Coe, Slienehon & DeWitt.

Samuel W. Coe, being in declining health, was desirous of
closing up the afiairs of his copartnership and his personal
affairs during his life-time, and reposing especial confidence
in his son, Charles B., sent for him and he came from New
York to Winchester.

On said 13th day of August, 1868, it was orally agreed by
Samuel W. Coe, David W. Coe and Charles B. Coe, that all
the goods and property of the firm of S. W. Coe & Son should
be transferred to Charles B. Coe, for the sole and express
purpose, and upon the express condition, of having them judi-
ciously and prudently converted into money as speedily as
possible by Charles B., and the avails paid by him to the cred-
itors of S. W. Coe & Son in payment in full of the indebted-
ness of the copartnership, and the balance, if any remained^
paid to the firm of S. W. Coe & Son ; and that Charles B.
should give his promissory notes for the amount that the
goods and property were worth, payable to S. W. Coe & Son,
the notes to be regarded as vouchers or memoranda of the
transaction to show the value of the geods and property trans-
ferred to him ; and after all the creditors of S. W. Coe & Son
should be paid and any balance remaining should be paid to



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AUGUST TERM, 1870. 187

YtdVs Appeal ftom Probate.

the firm, the notes were to be given up to Charles B. Coe and
cancelled ; and any sum paid to the creditors of the firm by
Charles B. was to be indorsed on the notes. In pursuance
of this agreement Samuel W. and David W. Coe, on the 13th
day of August, in good faith transferred all of the goods and
property of S. W. Coe & Son, amounting to $17,760, to Charles
B. Coe, and Charles B. in like good faith to carry into effect
the agreement gave his five promissory notes, payable to S.
W. Coe & Son, all bearing date Aug. 18, 1868, four for $4000
each, payable respectively in twelve, fifteen, eighteen and
twenty-one months, and the fifth for $1750 payable in twenty-
four months, as vouchers or memoranda showing the amount
of goods and property so transferred. The appellees intro*
duced parol testimony to prove all of the foregoing facts,
except the amount of the notes and their tenor, to which tes-
timony the appellant objected, but the court admitted the
same.

TheT amount of the indebtedness of the firm of S. W. Coe
& Son at the time of the transfer of the property was about
$15,000, and the firm was not then in failing circumstances,
nor was the transfer made in view of insolvency.

All of the creditors of the firm were advised of the trans-
fer and acquiesced therein, but no other person had knowledge
of the transaction, nor did Vail, the appellant, have any knowl-
edge thereof at the time he became the owner of the notes
hereinafter mentioned.

On the 25th day of August, 1868, Samuel W. Coe died,
leaving a will appointing David W. Coe his executor, who
has ever since been and now is acting as such executor in the
settlement of his estate.

Immediately after the transfer of the property Charles B.
Coe took possession of the property and commenced convert-
ing the same as speedily as possible into money for the purpose
of carrying into effect the objects of the transfer, and so con-
tinued until the 14th day of December, 1868, and during that
period he added to the goods and property so transferred,
goods to the amount of $4,981.66 purchased on credit, and
goods to the amount of $7,751.24 purchased for cash received



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188 L^^C^F1ELD CX)UXTY.

Vaa'» Appeal ffooa Probats.

from sales of the goods transferred, and during the same
period the sum of $2,669.81 was paid to the creditors of S«
W. Coe & Son, and, on the 14th day of December, 1868, was
indorsed on the note of $4000 so given by Charles B. which
would iGbrst mature. The purchases on credit and- for cash
were made in good faith, for a more prudent and judicious
disposition of the goods and property so transferred.

After the transfer Charles B. Coe continued to be a mem-
ber of the firm of Coe, Shenehon & DeWitt until the 14th
day of December, 1868, on which day that firm failed, and
made an assignment, as did also the partners of the firm
individually, of all their property in New York. Charles B.
Coe also, on the 29th day of December, 1868, made an assign-
ment to Asa D. Dickinson of New York, of all his property
in this state, which assignment is now in the process of set-
tlement before the court of probate for the district of Win-
chester. At the time of the assignment Charles B. Coe had
no other property of any kind in this state except the goods
and property so transferred to him by S. W. Coe & Son, and
the goods added thereto, purchased on credit and for cash,
and the same were taken possession of and converted into
money by Dickinson under the assignment, and Dickinson
now has the same in his hands ready for distribution accord-
ing to law, and there are no other moneys or assets of the
estate so assigned by Charles B. Coe in the hands of his
assignee for distribution.

The notes given by Charles B. Coe to S. W. Coe & Son,
were presented for the benefit of the creditors of S. W. Coe
& Son by David W. Coe to the commissioners on the assigned
estate of Charles B. Coe, and were by the commissioners
allowed, but in the commissioners' report no mention is made
of the fact of the notes being presented or allowed for the
benefit of those creditors.

Vail, the appellant, became the owner of the paper and
notes of the firm of Coe, Shenehon & DeWitt before the
failure of that firm, and presented the same to the amount of
$17,995.61 to the commissioners, who allowed the same " sub-
ject to the order of the court."



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AUGUST TBBM, 18(0. 189

VaU'ft Appo^a from PvdM».

On tlie trial the appellees offered parol evidence to prove
the agreement under which the property was transferred by
S. W. Ooe k Son to Charles B. Coe, and under which the
notes were given by the latter to the former. The appel-
lant objected to this evidence on the ground that it was
contradictory to and variant from the promissory notes
and variant from the contract evidenced by the notes ; and,
it being admitted that the notes had been presented to
the commissioners on the estate of Charles B. Coe and by
them allowed, and that the report of the commissioners had
been accepted by the court of probate, the appellant further
objected to the evidence on the ground that it was contradic-
tory to the report of the commissioners, and to the action of
the court accepting the report, and that the appellees liaving
thus treated the notes as valid claims against the estate were
estopped from now claiming that they were what the parol
evidence if admitted showed them to be ; but the court over-
ruled the objections and admitted the testimony. The appel-
lant also claimed that the decree of the court of probate
ought to be reversed on the ground that, upon the facts
claimed, the appellees were not creditors of Charles B. Coe,
and the notes were not due as a debt and were not allowable
as such, and that the jurisdiction of the court of probate was
confined to the distribution of the assets among creditors, and
the court had no jurisdiction to decide on the title of the
assignor to the property assigned and on the rights to the
assigned property of persons not creditors. But the court
overruled these claims of the appellant and rendered judg-
ment aflSrming the decree of the court of probate appealed
from.

The appellant moved for a new trial.

E, W. Seymour^ in support of the motion.

1. The jurisdiction of the court of probate depends upon
the facts being as we claim them, and if the parol evidence
is admitted and acted on the court of probate is ousted of
jurisdiction, It» jurisdiction is given by section 73, tit. 11,
Gen. Statutes. These courts have no general jurisdiction,
but only the special jurisdiction conferred by the statute. So



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190 LITCHFIELD COUNTY.

Yail'f Appeal ftom Probate.

far as relates to this case the court of probate has no jurisdic-
tion over it except as an assignment of the property of
Charles B. Coe, in trust for the benefit of his creditors. It
is of the essence of the jurisdiction that, as subject matter of
its jurisdiction, there should be property assigned of the
assigning debtor, which property is subject to the disposition
of such debtor for the benefit of his creditors. But the whole
scope of the parol testimony is to show that the property in-
ventoried as the property of Charles B. Coe, and as subject
to his debts, is not his property and is not subject to his debts.
The facts found upon the parol pi'oof are that the property
was transferred to Charles B. Coe in trust for the creditors
of S. W. Coe & Son ; and the decree of the court of probate
proceeds upon the ground that the goods in the hands of
Charles B. Coe were not his goods, were not subject to assign-
ment for his debts and for the benefit of his creditors, but
were subject to a prior and difierent trust for the benefit of
the creditors of S. W. Coe & Son ; and the court of probate
attempts, in response to the petition of David W. Coe, vir-
tually to execute that common law trust in favor of the cred-
itors, not of the assignors in insolvency, but of S. W. Coe &
Son.

2. But even it the court of probate has general jurisdiction
over the subject, it- has no power in this particular case to
make the order appealed from. Whatever power the court
has is conferred by section 135 of the act concerning the set-
tlement of estates. Gen. Stat., p. 437. This power is confined
to a distribution of the property among' the creditors of the
insolvent. Now the parol proof offered, if admissible, proves
that S. W. Coe & Son, are not creditors of Charles B. Coe.
The very object of the parol proof is to show that Charles B.
Coe is not debtor by the notes, but that the notes are vouchers
and memoranda, and evidence, not of the obligations of a
debtor, but of obligations of a totally different character, or
of no obligations at all. If Charles B. Coe owes the notes
as a debt then he owns the property for which the notes were
given as his own property, for it was his own individual notes
which were given, and not as trustee ; and these were given



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AUGUST TERM, 1870. 191

Vail's Appeal from Probata.

to S. W. Coe & Son as individuals, not as trustees, or as repre-
senting creditors. But if Charles B. Coe merely received
the goods as a trustee for the creditors of S. W. Coe & Son,
then Charles B. Coe owes no debt to S. W. Coe & Son, and
S. W. Coe & Son cannot make Charles B. Coe their debtor
on account of such transfer to him as trustee. He is trustee
not debtor, and is trustee of a fund which is to be adminis-
tered in the courts of equity and cannot be administered in a
court of probate. As trustee for the creditors of S. W. Coe
& Son he may be proceeded against in equity, and the goods,
the subject of the trust, be subjected to equity jurisdiction,
if upon investigation the facts relied on in this case should
be sustained, or perhaps, if he has violated his trust, he may
be proceeded against as a debtor by reason of such breach
of trust, but no such breach of trust is here suggested or
proved. But if he is proceeded against as a debtor on the
notes, then the trust is abandoned, and if there ever was any
such agreement as that stated in the petition, the parties
have botli abandoned it and acted not on the trust but on the
transaction as creating the relation of debtor and creditor,
and the property as passing to Charles B. Coe as his own
property ; and after both parties have so treated the transac-
tion it is too late to treat it otherwise. Even if S. W. Coe &
Son were creditors with a lien on the property assigned, the
commissioners must enquire into the value of the security,
but neither commissioners nor courts of probate can settle
contested liens ; courts of common law only can decide such
questions.

G. C. Woodruff and Hitchcock^ contra.

1. The parol testimony was properly received. It was
not contradictory to the notes, but in confirmation and ex-
planation of them.

2. The presenting of the notes to the commissioners is
not an estoppel ; the appellant was not misled by it, and it
has none of the requisites of an estoppel.

3. The appellees are creditors. They had a pecuniary
daim on Charles B. Coe, which it was proper for the commis-



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192 LITCHFIELD COUNTY.

Vail'a Appeal fnm Probate.

fiioners to act on. It was a cimm properly enforceable through
these notes. The finding of the oommissioners that the
appellants are creditors is conclnsiye.

4. The order of the court of probate on the facts found
was equitable and just, and one which the court had a right
to make. AshmeacTs Appeal from Probate, 27 Conn., 241.

5. Under the facts found, the creditors of Ooe, Shenehon
& DeWitt have no just claim on this property, and haye,
therefore, no cause of complaint till the cestvi que trust is
satisfied.

6. But if the appellees are not technically creditors, they
are entitled to the proceeds of this property as being trust
estate. It is found to be wholly trust property. Trust property
does not pass to the assignee, and so long as it can be traced
enures to the benefit of the cestui que trust. Moses v. Murgat'
roydy 1 Johns. Ch., 128 ; Kip v. Bank of New York^ 10 Johns.,
63. And on this ground the appellant has no claim on this
property, and therefore no cause of complaint.

Butler, C. J. We have been embarrassed in the consid-
eration of this case by the condition of our law in relation to
the chancery powers of a court of probate, and by the pecu-
liar character of the facts and proceedings. But after careful
deliberation we are of opinion that the decree of the Superioi
Court, affirming the order of the comrt of probate, cannotj
upon principle, be sustained.

In the case oi Hotchkiss v. Beachy (10 Conn., 232,) it was
holden that the sole power of determining the nature and
character as well as the amount of claims against an insolv-
ent estate, was confided by statute to the commissioners —
that the courts of probate had no power to allow or disallow,
directly or indirectly, any claim or demand against such an
^estate, and that the report of the commissioners was made
peremptorily " the sole rule by which the judge is to order
payment ;" and the court reversed an order of the court of
probate marshalling the assets of the estate so as to deprive
partnership creditors of a dividend from the individual prop-
erty until individual creditors were paid, because the differ-



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AUGUST TERM, 1870. 193

Vail's Appeal from Probate.

ence in the nature and character of the claims was not
reported by the commissioners, but was afterward found bj
the court of probate. It was admitted or assumed in the
case, though since otherwise decided, (Camp v. Chanty 21
Conn., 41,) tliat the individual creditors of a deceased part-
ner should first be paid from the individual estate, and the
point of controversy, and the one decided, was that whether
a partnership or an individual debt was a.fact to be determined:
by the commissioners alone, and that if they made no dis-
crimination between the claims in their report, the court of
probate could make none, but must order all paid as individ-
ual creditors. That decision was made in 1834 by Church,
Chief Justice, and Daggett and Bissell, justices. Judge Peters
being absent, and Judge Williams dissenting. If that decis-
ion is law now, the court of probate had no power to go
behind the report of the commissioners and into an inquiry
after equities between the creditors , but, as all stood on the:
same footing in the report, the court should have ordered all'
to be paid alike.

The decision was received and acted upon as law until.
1867-8, when two decisions were made in relation to the
assigned estate of the Grove Car Works, an insolvent corpo-
ration, which are in conflict with that of Hotchkias v. Beachy
(WatermarCs Appeal from Probate, 26 Conn., 96, and Ash-
meadC% Appeal from Probate, 27 Conn., 241.) In these cases^
the court seem to have holden unanimously that it was not
the province of commissioners to inquire into the nature and
character of the claims or whether there was any ground of
priority or preference in respect to the claims allowed, and
that all equities between creditors must be inquired into and
administered upon by the court of probate and that court
only, — ^taking substantially the ground assumed by Judge
Williams in his dissenting opinion in Hotchhiss v. Beach,

It is true the learned judge who gave the opinion in Ash-
meacTa Appeal did not expressly admit that the court intended
to overrule Hbtchfeiss v. Beach, and did attempt to discrimi-
nate between the two cases, but his attempted discrimination
did not relate to the point involved. He inquired whether

Vol. xxxvn. — 25



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194 LITCHFIELD COUNTY.



Vail's Appeal troin Troliate.



the court of probate could not regard truBts and liens adhering
to the property, in the administration and apportionment of
it, without regard to the report of commissioners or the stat-
ute relating to dividends, and said they could. He then goes
on to say that the case of Hotchkm v. Beach contains no doc-
trine to the contrary of that, and in that he was right. No
member of the court in Hbtchkiss v. Beach, nor any member
of any court since the administration of estates was first
given to the court of pr6bate by a statute comprehensive in
its terms, has ever doubted that proposition. But the point
decided in ffotchkisa v. Beach, and the point made by counsel
in AahmeacTa Appeal, was, that inasmuch as the commission-
ers had all necessary, incidental, legal and equitable power
to determine, and must ordinarily inquire into and determine,
the nature and character of the claims presented, and the
statute made it the duty of the court of probate to apportion
the assets ratably among those found to be creditors, " as
allowed by the commissioners," it was necessarily the province
and duty of the commissioners to find and report any facts
connected with the nature and character of the claims which
established an equitable right of priority in favor of one class
of creditors over another. The question then was not whose
province it was to ascertain " trusts and liens adhering to the
estate," but whoso it was to determine facts connected with
the nature and character of the dehla, which established an
equitable right of priority in the distribution of the assets,
when those assets were freed from all trusts and liens, and
made ready for distribution.

And it is perfectly apparent that there is an irreconcilable
conflict, in substance and effect, between the decisions. In
notchhiss V. Beach the commissioners reported the debts
without any finding of facts establishing any equitable right
of priority between the creditors. The court of probate
found such right and decreed a preference, and the Supreme
Couii; reversed the decree of the probate court. In Ashmsad's
Appeal the commissioners in like manner reported the debts
without any facts establishing any equitable right of priority
between the creditors, and the court of probate, assuming



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AUGUST TEEM, 1870. 195



Yail'f Appeal from Probate.



that there was an equity, passed a similar decree, which the
Supreme Court sustained. In one case the court go upon
the ground that it is, bj statute, the province of the commis-
sioners and not of the coui-t to find the equity. In the other,
the court say that that construction of the statute is a harsh
one and that it is the province of the court and not of the



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