
    Erastus Higbee et al. Appellants, versus Enoch Bacon, Administrator.
    If an administrator, in his answer to interrogatories proposed to him in the Court of Probate touching his account, makes an admission tending to charge himself with any estate omitted in his account, and at the same time states a fact in his discharge, such statement must be rejected as irrelevant, unless supported by proof.
    The party at whose instance interrogatories have been proposed, in the Court of Probate, to an administrator touching his account, has a right to offer evidence to disprove his answers.
    Enoch Bacon having rendered in the Probate Court his second account as administrator of the estate of his father, Ephraim Bacon, the appellants, heirs at law of Ephraim, filed a complaint, stating that they suspect the administrator has concealed and embezzled moneys, goods and chattels belonging to the estate of the intestate, and especially that he conceals and refuses to account for a certain instrument whereby he was bound to pay to the intestate certain large sums of money, and upon which, at the time of the intestate’s decease, large arrearages were due and unpaid, and still remain unpaid and unaccounted for ; and the appellants pray that the administrator may be cited to produce the instrument and submit himself to an examination upon oath, touching the matters contained in the complaint.
    The administrator having appeared to make answer to the complaint, the following interrogatories were proposed to him : —
    Did your father, at any time during his life, hold a uond, lease or other instrument' or obligation whereby you promised or undertook to pay him any sum or sums of money ?
    Were any of said instruments under seal; if so, how many, and what were they ; and if any such sealed instruments were held by your father during his life, did you take them into your possession after his decease ?
    The administrator produced an indenture of lease, dated April 1, 1806, by which, for the consideration of 1560 dollars, he demises the farm, on which he then lived, to -his father for life, and agrees to carry on the farm at his own expense, and to pay his father 50 dollars yearly during his father’s life, and to pay the taxes. In answer to the complaint and to the interrogatories, the administrator stated, that previous to April 1, 1806, he had labored for his father for about sixteen years, for most of which time he claimed compensation ; that on that day he received from his father a deed, dated June 23, 1792, given by J. Bates to him (the respondent), and which he understood was procured by his father’s giving up- a deed formerly given to him (the father) by Bates, bearing the same date; that he believed, and he has no doubt his father believed, that the amount due to the respondent and the sum which the respondent then secured and afterwards paid to his father, were a full equivalent to the interest which his father had in the farm ; that at the time of receiving the deed, the respondent delivered to his father the instrument above set forth ; that no consideration ever passed to him from his father, for the giving of this instrument, nor did the respondent ever expect to pay the sums therein mentioned ; that the instrument remained in his father’s hands until his decease in August, 1825, (when it came into the respondent’s hands,) without any demand or request on the respondent for the payment of any thing thereon ; but on the contrary, his father repeatedly told him, that he (the father) never should claim of the respondent any payment on the instrument, and that the services which the respondent had rendered him and was from time to time rendering him, were a full equivalent to all the sums which he might or could demand by virtue of the instrument, and that he considered the instrument to be fully settled and paid by these services; that the respondent fully believed that the services which he rendered to his father, from the date of the instrument to the time of his decease, were of more value to him and more injurious to the respondent, than the payment of the 50 dollars would have been. Re further stated, that the instrument was handed to him by S. Fiske, one of the executors named in the will of Ephraim Bacon, (which was not proved and allowed,) and that it came into his possession with other papers of the deceased.
    The complainants, reserving all manner of advantage of ex ception to the insufficiencies and impertinence of the answer, for replication say, that they will aver and prove their bill anu complaint to be true, certain and sufficient in law to be an swered to, and that the answer is uncertain, untrue and insufficient to be replied to, without that, that any other matter or thing whatsoever in the answer contained, material or effectual in the law to be replied unto, or to be confessed and avoided, traversed or denied, is true.
    The Court of Probate allowed the administrator’s account, and adjudged that he should be discharged and not held for any thing which might be supposed due to the estate of the intestate on the lease above mentioned. The court further adjudged, that no collateral evidence ought to be admitted to contradict the answers of the administrator.
    The complainants appealed from this decree, for several reasons.
    1. Because the judge of probate refused to strike out from the answer of the administrator certain matters not relevant to any interrogatory put by the complainants, but altogether irrelevant, impertinent and improper.
    2. Because the administrator was not required to prove the truth of ceitain allegations by him made in his answer, whereby he attempts to discharge himself from the payment of the obligation purporting a lease, although these allegations were denied by the complainants to be true.
    
      3. Because the complainants were not permitted to produce an7 evidence to contradict or explain divers allegations contained in the answer, though they offered so to do.
    4. Because the judge decided that the answer was sufficient in law and conclusive to discharge the respondent from any liability as administrator, upon the obligation above mentioned.
    5. Because the judge refused to admit evidence to charge the administrator for goods, effects, credits or assets not credited in his second administration account, which was open and pending before the judge.
    
      Oct. 5th.
    
    
      J. Davis and Tufts, for the appellants.
    Two points are decided by the judge of probate ; first, that the answer of the administrator discharged him from liability upon the instrument produced ; and secondly, that no evidence was admissible to impeach his answer. In both respects the decree is erroneous.
    The complaint had a two-fold object; — that the administrator should produce the lease, and that he should answer as to other property. In respect to the lease, the complaint is like a bill in chancery to produce papers. Com. Dig. Chancery, 3B 1, 3I1. The administrator was called on simply to produce.the lease ; which it was incumbent on him to do, in order
    that the appellants might be in as good a situation as before he was appointed administrator. He produces the lease and swears that he has complied with its terms. We contend that he is not to use his own statement in discharge of himself, and that it ought to be struck out of his answer, as irrelevant and improper.
    But if the answer is to stand, it is not sufficient to discharge the administrator. Where a defendant, in his answer, admits his liability and sets forth also some fact to discharge himself, he is bound by his admission, but he must prove the fact alleged in his discharge. Blake’s Ch. Pract. 247; Hart v. Ten Eyck, 2 Johns. Ch. Rep. 87.
    The judge of probate erred likewise, in determining that the appellants should not offer evidence to disprove the statements in the answer. It has always been the usage to litigate an administrator’s account, although he shall have sworn to its correctness. His oath is not conclusive. Toller, (3d ed.) 492, cites 4 Burn’s Eccles. Law, 427 ; Selectmen of Boston 
      
      v. Boylston, 4 Mass. R. 318. On a bill of discovery in chancery, the plaintiff may offer evidence to disprove the answer. Whether this complaint is considered like a bill of discovery, or as auxiliary to the proceedings in the probate court, it may be contradicted.
    The object of the appellee is to drive the appellants to their remedy upon the probate bond, hoping that in such case they will be obliged to use the whole of his answer; but though the appellants would probably find no great difficulty in maintaining a suit on the bond, yet it is apprehended that substantial justice may be done by requiring the administrator to prove in the Court of Probate, that he has paid all sums due upon the instrument in question.
    JVeteion, for the appellee.
    To what extent and in what manner the judge of probate shall proceed in interrogating an administrator in regard to the settlement of his accounts, has not been determined ; whether he is invested with only the power of spiritual courts ; or whether he is to proceed like a court of equity on a bill against an executor to account, or like a court of equity upon a bill of discovery ; or whether he has power to proceed in all these three ways. In the spiritual courts, if the administrator is examined on oath touching the inventory, no evidence is admissible to contradict bis answer. Toller, 253. There is no good reason for supposing that the legislature intended to give the judge of probate all the powers of a court of equity, in relation to the examination of an administrator ; and in a court of equity, if the complainant makes the administrator his witness, the whole answer must oe taken together. This complaint cannot be likened to a bill of discovery, for that is used only in aid of another suit; but here the object seems to be to charge the administrator. 1 Madd. Ch. Pr. 196. To effect the object of the complainants, the Court of Probate must unite in itself the powers of spiritual courts and courts of chancery, in the three modes of proceeding before mentioned. But it is apprehended that only the powers of spiritual courts were intended to be conferred on the judge of probate.
    This complaint must be founded upon St. 1783, c. 32, §11; but this statute does not provide for the examination of an executor or administrator, but only of other persons who are supposed to have concealed or embezzled effects of the deceased. Selectmen of Boston v. Boylston, 4 Mass. R. 318. If the heirs can file such a complaint against the administrator, it must be in the nature of a bill of discovery, and then his answer cannot be contradicted.
    
      March 26th, 1830,
    The answer contains nothing irrelevant or impertinent. If the administrator had simply produced the paper, he would have made himself liable upon it; it was therefore proper for him to state all the circumstances, whereby it would appear that he was not chargeable.
   Parker C. J.

drew up the opinion of the Court. We think the proceedings of the judge of probate in this case were incorrect, and that his decree allowing the second account of administration must be reversed. It was heretofore deter mined, that the administrator was obliged to answer under oath touching any matters relating to his account and tending to charge him with any estate or effects which he may have omitted either by mistake or design. Without this power he may defraud the heirs or creditors without any opportunity to detect, him. As in the present case ; there was an obligation from him to his father, found uncancelled among the papers of the deceased, which came to his hands as administrator. He might have burnt or otherwise have destroyed it, and there might be no proof that it was ever in existence. Merely swearing to his account gives little security, without the authority in the judge of probate, at the instance of those interested in the estate, to examine him critically under the sanction of his oath. It was objected on a former hearing, that it is con trary to justice and to the principles of the constitution, to sub ject a party to such an inquisitorial power, and by means of it to make him furnish evidence against himself. But the same objection will lie to the trustee process and to bills in equity, which require answers under oath. It should be recollected that an administrator is a trustee, accepting the trust voluntarily, and so having no right to complain of the liabilities incident to the trust. Such has been the practice in the Probate Courts, and it has been sanctioned by this Court in the case of Selectmen of Boston v. Boylston, 4 Mass. R. 318, and Stearns v. Stearns, 1 Pick. 157. But it certainly does not follow, that because he may be so examined, he will have a right to discharge himself by his own statement and declaration, unaccompanied by any evidence.

The rule is, that any answer that is within the proper scope and limits of the question put to him, shall be available in his favor ; as in confessions in suits at common law, the whole shall be taken together, not as conclusive, but as evidence for the consideration of the jury. But because he is put upon interrogatories, to allow him the general liberty of avoiding the effect of his admissions by going into independent matter, without any proof to support it, would be often to render this mode of inquiry wholly ineffectual for the purposes for which it was instituted. We think the judge ought to have rejected the irrelevant matter if not supported by proof, and that the appellants ought to have been allowed to contradict his statement by evidence ; and because this was refused, the decree is reversed and the case remitted to the judge of probate for further proceedings. 
      
       See Revised Stat. c. 67, § 7
     