
    Rufus Saxton, Appellant from a Decree of the Judge of Probate, versus William Chamberlain
    An administrator may be examined on oath upon interrogatories before the judge of probate, with regard to the time when he received money of the intestate’s estate, and the use which he has made of it, in order to ascertain whether he is lia.able to pay interest upon it.
    A settlement of an account in the Probate Court by an administrator, in which he does not charge himself with interest on moneys received by him, does not pre elude a subsequent inquiry as to the propriety of charging him with interest, if the question of interest was not a subject of examination when the account was passed.
    If when the account was settled, the Probate Court inquired into the liability to pay interest and decided against it, the settlement, unless obtained by fraud, is conclusive against the liability.
    Where an administrator several months after settling an account, presented a petition to the judge of probate for a commission on his disbursements, which was allowed, it was held that this was opening the account, and that omissions in it, such as not charging himself with interest for which he was accountaNe, might be corrected.
    
      Rufus Saxton, administrator on the estate of William Barnard, deceased, presented an account of administration to the Probate Court of the county of Franklin in May, 1826, which, after due notice, &c. was allowed by the judge in June. In this account he did not charge himself with any interest. In October the administrator presented a petition to the judge to be allowed a commission on his disbursements ; and after due notice, &c. the prayer of the petition was granted in the succeeding November.
    In the same month of October, W. Chamberlain and S. Allen, creditors of the deceased, presented a petition to the judge, that Saxton, the administrator, should be required to account for interest on the money in his hands belonging to the estate ; and in November it was decreed, that the administrator should be examined upon oath touching the time when he received the money and the use which he had made of it. From this decree the administrator appealed for the following reasons, viz. — There is not any statute or law of the Commonwealth by force of which an administrator is answerable for interest on any money in his hands, and it has, until very recently, been held by the Supreme Court to be questionable, whether administrators were liable to such examination ; and the case of Stearns et al. v. Brown, 1 Pick. 530, where it was held that they were bound to answer, was very different from this case. There the administrators were called upon to answer interrogatories touching the use made of money in their hands only during the pendency of the appeal in the case. Here the administrator exhibited his account of administration at a Court of Probate in May, 1826, including the whole amount of interest received by him, and the case was continued to a Probate Court in June then following, and an order of notice was issued and published in a public newspaper agreeably to the order, that all persons interested might appear, &c. at which court one of the petitioners was present and examined the account and made no objection to the same, nor was any objection made by any one, and the administrator then and there made oath that the account by him exhibited was true. Now if the creditors have a right to make the inquiry of the administrator respecting the use of the money in his hands, they ought to have appeared at the Court of Probate, according to the notice, and have put the interrogatories before the oath above mentioned was tendered to the administrator, and by neglecting to do so they have waived their right to make such examination.
    The case was argued in writing.
    
      Jlshmun, for the appellant,
    contended that interest, being a mere incident to the principal, could not be claimed after the account was settled with regard to the principal; that the matter had been already passed on and was directly involved in the decree of the judge of probate on the account; that the decree, being res judicata, was conclusive as to the subject matter of it to all intents and purposes. He cited Moses v. M'Ferlan, 2 Burr. 1009; Homer v. Fish, 1 Pick. 435.
    
      Wells, contra.
    
    The petition of Saxton in October was a prayer to correct the account passed in June, and opened that account. The account being thus opened for his benefit, it is opened for other purposes, and he certainly cannot object to have it corrected where it is to his disadvantage. An executor or administrator is liable for interest on money in his hands, if he has received any interest from the loan of it, if he has used it in his business, if he has unnecessarily delayed accounting for and paying it over, and even if he has deposited it, if the deposit has been a benefit to. him. Mumford v. Murray, 6 Johns. Ch. R. 1; Brown v. Ricketts, 4 Johns. Ch. R. 303; Dunscomb v. Dunscomb, 1 Johns. Ch. R. 510; Manning v. Manning, ibid. 535; Shiefflin v. Stewart, ibid. 620 ; Ratcliffe v. Graves, 1 Vern. 196; Lee v. Lee, 2 Vern. 548; Newton v. Bennett, 1 Bro. C. C. 359; Perkins v. Baynton, ibid. 375; Treves v. Townshend, ibid. 384; Franklin v. Frith, 3 Bro. C. C. 433; 4 Dow’s Parl. Cas. 131; Stearns v. Brown, 1 Pick. 530; Wyman v. Hubbard, 13 Mass. R. 232. Omissions and errors in an administrator’s account may be always supplied and corrected in a subsequent account. Weeks v. Gibbs, 9 Mass. R. 74; Stearns v. Stearns, 1 Pick 157, 159, 164; Wyman v. Hubbard, 13 Mass. R. 235.
    The administrator may be made to add to his account credits not contained m it. Boston v. Boylston, 4 Mass. R. 318. An administrator may be examined on interrogatories upon oath respecting any property which has come to his hands, or the use that he has made of money collected by him, while it was in his hands. Stearns v. Brown, 1 Pick. 530.
    
      April term, 1828, in Franklin.
    
   Putnam J.

delivered the opinion of the Court. The objections of the counsel for the appellant cannot prevail. The object of the appellee is to compel a discovery under the oath of the administrator, of the facts which may tend to prove his liability to pay interest upon any money held by him during the time of his administration. It may happen that the facts which may be disclosed would not support any charge of interest. We have decided in Stearns v. Brown et al. 1 Pick. 530, that the administrator may be compelled to answer upon oath touching the use he has made of the money in his hands, and we see no good reason for overruling that opinion.

If the account of administration has not been settled and closed, it seems wholly unimportant whether a charge to which the administrator is justly liable, be classed among the incidental or principal matters.

The main objection which has been presented is, that this matter has already been passed in judgment at the Probate Court. It either has or it may have been there considered and disallowed. It is said to be res judicata, and involved in the settlement of thé previous' account in the Probate Court. If that were made to appear, we should not disturb the account or open it in the manner proposed. But all that can be ascertained from the inspection of that account is, that there is no charge for interest contained in it. It is answered however, that the reason for the omission may be the refusal of the judge of probate to allow such a charge upon the application of the appellee, and so it is insisted that this matter may have been heard and tried and decided in the proper tribunal. Now that argument would apply just as well to any other charge which shoi Id be proposed to be added to the account, which had been omitted to be claimed in a former account. JY*on constat upon the face of the account, or in the proceedings in the Probate Court, but that the judge has refused to allow it. It may have been the subject of examination, and it may have been rejected. But we think that this argument proves too much> and would exclude all claims which were in existence, but which were by accident or mistake omitted to be presented. It will not do to say that no investigation shall be had concerning such charges, because, for any thing which appears upon the face of the proceedings, they may have been heard and rejected. If that were the truth of the case, it can be proved, and if proved, it would be conclusive. For we consider all matters within the jurisdiction of the Probate Court and settled there, to be conclusive between the parties, and not to be disturbed unless upon the ground of fraud ; which will vitiate all proceedings in that as well as in any other court. It was upon this principle that this Court proceeded in Hapgood’s case at Worcester. An issue was found by the jury in that case, upon the point of fraud alleged to have been practised in the settlement of the account in the Probate Office.

Now the appellant cannot say with truth, that this account of administration is closed. He has- opened it himself to correct a mistake which he made, by which he omitted to charge the estate with something with which it ought to be charged. It being opened, it seems to us that the appellee must be permitted to show that the administrator has omitted to charge himself with something with which he ought to be charged.

The allegation is, that this is new matter upon which the judge has not decided, and which has not been presented Whether it be so or not, may be a subject of subsequent inquiry and proof. If it were heard and rejected, it would follow that the remedy for the aggrieved party would have been by appeal. But if it shall appear that it is new matter, as the account is now opened, we see no good reason why t should not be examined.

We think the administrator must answer upon his oath to the interrogatories proposed by the appellee ; and that ;he cause should be remitted to the Court of Probate, for further proceedings there to be had upon the discovery which the administrator is to make. 
      
       See Griswold v. Chandler, 5 N. Hampsh. R. 497; Revised Stat. c. 67 § 7; Pope v. Jackson, 11 Pick. 118; Higbee v. Bacon, 7 Pick. 14.
     
      
       See Standish v. Parker, 2 Pick. (2nd ed.) 22, note 3.
     
      
      
         See Revised Stat, c. 67, § 10.
     