
    Joseph Willard and Wife, Appellants, v. Ephraim Kingsbury.
    Where an administrator has settled his final account in the Probate Court, and a decree has been made, directing- him to pay the balance to certain parties, the Probate Court is not the proper tribunal to try the question whether the administrator has fulfilled the decree.
    Appeal from decree of Judge of Probate.
    Absolem Kingsbury, Feb. 5, 1800, was appointed administrator on the estate of Daniel Perrin. Oct. 1,1803, he settled his administration account; balance in hands of administrator, $844.85; ordered to pay, of this sum, $60 to husband of the widow of Perrin, viz. Joseph Willard (her proportion of the personal estate) ;  the residue, $784.85, to be paid to Elisha Kingsbury, guardian to the heirs of Perrin, upon his giving security to pay Mrs. Willard, widow of Perrin, annually, during her life, interest of $261.62, it being in lieu of her dower in her late husband’s estate. (It seems the whole estate had been sold, by license, for payment of debts ; it was thought reasonable, as it was advantageous' to the heirs, that the widow should have the interest of the one-third that remained after debts paid.)
    Absolem Kingsbury, the administrator, died testate, before Oct. 1, 1806; the appellee, Ephraim Kingsbury, his son, was his executor.
    On that day, Ephraim Kingsbury appeared before the judge of probate, and settled an additional account of administration, as executor of his father, Absolem Kingsbury. He charged himself with the balance of the former account, $844.85, and interest, $152.07; total, $996.92; and had allowance for the payment made to the widow of Perrin under the former decree, $60, and interest, $7.20, and on account of interest under former decree in lieu of dower, $20, and interest upon the payment, $2.40, and charges of this settlement, $5.26; total, $94.86 ; balance in hands of executor, $902.06.
    • The-judge of probate then decreed $27.09 of this balance to be paid to Joseph Willard, the husband of Perrin’s widow, as the balance of interest due her under the decree of Oct. 1, 1803, and that he pay interest on $261.62, as before, under the former decree.
    From this latter decree an appeal was taken, and is the matter now before the Court.
    Two objections were made to the decree complained of by Mr. Briggs, counsel for the appellants.
    1. That it appears, from the decree itself, that Absolem Kingsbury, the administrator of Perrin, had fully accounted for all the estate that ever came to his hands as administrator of Perrin, and that no such estate had ever come to the hands of the plaintiff, representative of the administrator ; and that the administrator, in his settlement, Oct. 1, 1803, had been allowed for all his services and disbursements in relation to his office of administrator. There was, therefore, no subject-matter for an account subsisting, which could found any jurisdiction in the judge of probate ; nothing for the judge of probate further to do ; that he could not lawfully inquire and decree concerning the performance or non-performance of the former decree; this matter not being within his jurisdiction, but triable at law. And, therefore, on this ground, that the decree should be reversed, the proceedings being coram non judice.
    
    2. But, if the Court should be of a different opinion, he denied that any such payments had been in fact made, as stated in the account, &c.
    
      
      
         This was not a distributing of surplusage of personal estate, but an allowance to widow; personal estate insufficient to pay debts, &c. (ul semble).
      
    
   Smith, C. J.,

now delivered the opinion of the Court, recognizing the doctrine laid down by Mr. Briggs ; and adding that the executor of A. K. could only settle an account which A. K., if alive, could have settled; that it appears that no such account remained to be settled. A. K. was functus officio. His office of administrator was at an end. Tlie settlement of Oct. 1, 1808, was a final settlement; and, as far as now appeared, the decree was, in law, a final decree. The judge of probate is not the proper forum to try the question whether the administrator, A. K., or bis representatives, have fulfilled that decree. This must be done at law, either in a suit on tlie administration bond or decree. The executor of Absolem Kingsbury, the administrator, liad nothing to do with the estate of Perrin but to perform tlie decree, and with that the judge of probate has no concern.

Decree reversed. The parties remain where they were before it ■was passed, , 
      
      
         Action was then pending by Willard and wife to recover, as money received to plaintiff’s use, the interest for two years.
      Judgment on report (for plaintiffs), October, 1808. The action was against 15. K.
     
      
       In support of these views, see Bei.l, C. J., in Hill v. McIntire, 1859, 39 N. H. 410, 413; Pebley, C. J., in Hayes v. Hayes, 1868, 48 N. H. 219, 226, 227.
      In Vermont, the Probate Court cannot imprison a former administrator for non-compliance with a decree to pay over to the administrator de bonis non the balance found due on final settlement of the first administrator’s account. In re Bingham, 1859, 32 Vt. 329.
      In New York, the statute provides that a surrogate’s decree for the payment of money by a guardian may be docketed, and an execution issued thereon; also that the surrogate may “enforce all lawful orders, process, and decrees of his court, by attachment.” In Seaman v. Duryea, 1854, 11 N. Y. (1 Kernan) 324, a guardian was proceeded against in the Surrogate’s Court, by attachment, for contempt in not paying over a balance according to the surrogate’s decree.
     