
    Erastus Higbee et al. Appellants, &c. versus Enoch Bacon, Administrator of Ephraim Bacon.
    
      Oct. 5th 1827.
    A judge of probate has authority to examine an administrator upon oath, touching any obligation due from the administrator himself to the intestate’s estate.
    The appellants represented to the judge of probate, that they were interested in the estate of Ephraim Bacon ; and that they had reason to suspect that the administrator withheld and refused to account for a certain obligation whereby he was bound to pay to the intestate certain large sums of money, and upon which large arrearages were due and unpaid at the time of the intestate’s decease ; and they prayed that he might be required to produce the instrument and submit himself to examination under oath touching the matters contained in their complaint.
    After the administrator had answered that the intestate, during his life, held obligations against him for the payment of money, the following interrogatory was put:—“ Were any of said instruments under seal; if so, how many and what were they ; and if any such sealed instruments were held by the intestate during his life, did you take them into your possession after his decease ? ”
    The administrator refused to answer this question ; and the judge of probate decreed that he be no further held to answer respecting a certain obligation &c., as set forth in the complaint.
    
      J. Davis and Tufts, for the appellants,
    remarked that the settlement of the administrator’s second account was pending, and that this complaint was filed in order that the account might be settled truly. They cited St. 1783, c. 32, § 11, 12 ; St 1817, c. 190, § 14 ; Stearns v. Brown, 1 Pick. 535 ; Toller 489, 495.
    
      April term 1888.
    Newton, contra,
    cited Selectmen of Boston, v. Boylston, 4 Mass. R. 322. The appellee’s objection to answering interrogatories was, that he would thereby lose the common law right of a trial by jury. In the case just referred to, the Court say that the authority of the judge of probate under St. 1783, c 32, § 11, extends, at most, only to an examination of an administrator for the purpose of discovery. But there is no good reason for permitting an examination even for that purpose, as a discovery before the judge of probate could avail the appellants only as subsidiary to some other process before a different tribunal. He could pass no decree grounded on the discovery. The proper course for them would seem to be, to file a bill of discovery in this Court as a court of equity.
   At the following term in April, the decree of the judge of probate was reversed, and he was commanded to proceed upon the complaint and in the examination of the administrator touching the estate of the deceased, according to law. 
      
       See Higbee v. Bacon, 8 Pick. 484 ; O‘Dee v. M‘Crate, 7 Greenl. 467 Saxton v. Chamberlain 6 Pick. 422; Pope v. Jackson, 11 Pick. 113.
     