Dickinson's Appeal from Probate. ceive the evidence upon the one side and upon the other, and determine the question as between the parties, and thus prevent circuity of action and simplify the proceedings in the case? W. F. Willcox, for the appellees. LOOMIS, J. The statute with regard to the division of intestate estates among the heirs and next of kin provides that "intestate estate, after deducting expenses and charges, shall be distributed by three disinterested persons, or any two of them, under oath, appointed by the court of probate, unless all the persons interested in said estate shall be legally capable to act, and shall make and file in court a division of the same, made, executed and acknowledged like deeds of land; which instrument, being recorded in said court, shall be a valid distribution of said estate." Gen. Statutes, p. 372, sec. 5. The question in the present case is-whether a division of such an estate made in writing among the heirs and next of kin, all being of age and all joining, but where the division is not "made, executed and acknowledged like deeds of land," and is not filed and recorded in the probate court, supersedes or precludes a regular probate decree ordering such a distribution. It is not important to the question whether deeds have passed between the heirs, releasing to each his agreed share, or whether the matter rests wholly in a written contract. The mere contract would be binding on the parties executing it, though it would of course require an exchange of deeds to make the title complete on the public records. That heirs may make such a contract and such conveyances, and that they will be valid and binding, was settled by the decision of this court in Baxter v. Gay and wife, 14 Conn., 119, and is no longer an open question. All the heirs could unite in conveying their rights to a stranger, or one heir could convey his interest to a stranger. If this is so they could certainly convey to one another. But the question is not whether they could convey to Dickinson's Appeal from Probate. each other; but whether such agreement or conveyances would supersede and exclude a later formal distribution by the probate court. As such formal distribution is not necessary to make a valid title on the public records, where all the heirs have executed and delivered to each other crossdeeds conveying all their interest, it may at first blush seem strange that the law should allow the probate court to incumber its records with nugatory decrees of distribution which cannot be enforced. This anomaly arises from the mandatory terms of the statute and from the inability of the probate court under its limited jurisdiction to hear and enforce the claims of parties founded on contracts made. between them after the estate shall have vested in the heirs. upon the death of the intestate. In Holcomb v. Sherwood, 29 Conn., 418, this court decided that where one of the heirs has conveyed away his interest in the real estate before distribution, the court of probate is to ignore the conveyance, and order the distribution made to the heirs as if no conveyance had been made. The conveyance of course stands good, and operates either by way of estoppel or as an assignment of the heir's interest. We see no reason why the same rule should not be applied here. The distribution, we think, would ordinarily be made in accordance with the division made by the parties themselves; but if it should not, any heir who should get what by the agreement he was not to take, would be bound to convey to the party who took it under the agreement, and any heir failing to get under the distribution what he had taken by the agreement, could by a proceeding in equity compel a conveyance of the agreed part to himself. It is clear that, if this were not so, a court of probate I would have many questions to try which it could not entertain or dispose of, and which would be entirely foreign to probate jurisdiction as now recognized. If, for instance, there had been a voluntary division by written agreement or by deeds, the question might be made whether the agreement or deeds had not been obtained by fraud or duress, or executed under mistake, or, as suggested by the pleadings Dickinson's Appeal from Probate. in this case, whether the agreement if originally valid had not been lawfully rescinded, or whether the agreement ought not to be set aside upon equitable considerations. Indeed we can hardly conceive a case where, after such a division had been made by the heirs themselves, any one of the heirs would apply to the probate court for an order of distribution, unless he was prepared to attack the voluntary division upon some of the above mentioned grounds. The recent case of Hewitt's Appeal from Probate, 53 Conn., 24, has settled the point that the probate court cannot go into these inquiries. The court of probate has before it the statutory duty of ordering a distribution of an intestate estate, "unless all the persons interested * * * shall make and file in court a division of the same, made, executed and acknowledged like deeds of land; which instrument being recorded in said court shall be a valid distribution of said estate." We think that the court must ignore any division not made in full accordance with this statute requirement. It is not however to be inferred that the probate court in every case is to disregard such a division and proceed on its own motion to order a distribution. The court will be justified in waiting for some person interested to apply for the order, and, as already suggested, it can hardly be conceived that any heir having made and concurring in such a division would apply for such an order. Where however he does apply, and the order is granted, and on the distribution the voluntary division is ignored, the case becomes one for a court of equity, which, upon the complaint of any party aggrieved, could set aside or establish the conveyances previously made or enforce the written agreement. That court, having full jurisdiction, could hear all the evidence and act finally upon it. errors. Our conclusion that there was no error in the matters assigned would ordinarily preclude discussion as to other But in this case there is an error and inconsistency in the finding of the trial court that might mislead the probate court in revising the administration account and in ordering another distribution. Dickinson's Appeal from Probate. It was our first impression that the error could not be fully corrected without a reversal of the judgment of the Superior Court, but on further consideration we have concluded that such reversal may not be necessary after the matter is fully explained. The appeal from probate was from the decrees accepting the administration account, appointing distributors, and accepting their doings. In the reasons for appeal, among other things, the balance of account found due the administrator of $784.61 was particularly mentioned. In schedule B the items of the administrator's charges against the estate appear, and they amount to the sum of $1,984.56. Upon this was a credit of $1,200 for rent of a factory in the hands of the administrator and the above balance was obtained by deducting the latter sum from the former. Now the finding of the Superior Court is as follows:"The decree of the court of probate in accepting and allowing the said administrator's account as to all sums and items stated and appearing in schedule B in said account, except the last two items therein, to wit, except items of funeral expenses, $144.73' and estimated expenses settling estate, $75.00,' is reversed, and all said items stated and claimed in said schedule B, except as above stated and accepted, are found not to be due, and are disallowed and rejected. The sum of the items hereby disallowed and rejected is $564.83, and in all other respects and particulars said decree is confirmed and established." The meaning of the court as to the items to be deducted cannot well be mistaken. All the items on the debit side of the account are rejected except the last two, which are named with the amounts. Deducting the two items excepted, which amount to $219.73, from $1,984.56, the whole amount, and we have as the correct sum of the items disallowed and rejected $1,764.83. But the court manifestly errs in stating the sum of the rejected items to be $564.83. The court makes no mention of the credit of $1,200 in the hands of the administrator. It is absurd to suppose that what the administrator acknowledged to be in his hands Dickinson's Appeal from Probate. would be rejected in his favor, and besides, the court rejects all the items except the last two, which are named, and we see that they are the last two items on the debit side of the account, which shows that the deduction has reference to that side of the account. How the mistake on the part of the trial judge occurred it is not necessary to conjecture. We think however the footing given may be rejected and corrected by the more certain data contained in the finding, and that the court of probate may and should revise the account accordingly. Upon such revision the result will be as follows:-The property mentioned in schedule A for distribution amounts to $7,275.28. The probate court allowed the administrator to deduct $784.61 from this sum as a balance due him, but the finding of the Superior Court shows that instead of the estate owing him he owed the estate. His account credits $1,200 as being in his hands; the court allows him only two items, which together amount to $219.73, which being deducted from the $1,200, leaves in his hands belonging to the estate the sum of $980.27, which sum must be added to the amount of property first mentioned (viz., $7,275.28,) which makes the entire amount to be distributed $8,255.55. The amount distributed was only $6,490.67. The difference, viz., $1,764.83, represents the remaining estate which the court of probate must now order to be distributed upon a just revision of the account according to the data given by the Superior Court. This we think may be accomplished without setting aside the distribution already made. The only objection to that distribution is that the amount was not large enough. It may we think be treated as good so far as it goes. One distribution does not preclude the making of another. The property now to be distributed being all in money, there is not the slightest difficulty in doing equal and exact justice to all the heirs without disturbing what they have already. The court of probate should therefore find the additional amount to be distributed and order its distribution. There are other defects apparent on the record which it may be well to advert to, although, for reasons to be given, |