more just and appropriate.53 This question is somewhat discussed in Story's Equity Jurisprudence, and there seems of late to be a tendency to escape from the English rule upon the subject, in the courts of equity there, by multiplying the exceptions, the usual expedient for escaping a vicious precedent. We do not suppose it would be profitable here to multiply the reiteration of the same or similar rules for compensating executors and administrators in the different American states. They will be found carefully collected in Mr. Fish's note to Williams.55

25. It is scarcely necessary to say, that the settlement of an executor's or administrator's account before the probate court, unappealed from, or where the decree is passed in the court of final resort, is conclusive upon every question expressly or impliedly adjudicated.56 But such adjudications have only been held conclusive upon matters specifically passed upon in the decree. Hence, if the question of interest in such an account was not specifically passed upon in the prior accounts, it may be adjusted at the final hearing, although the question affects items allowed in former accounts.57 But where the particular question of the allowance of interest had been raised and adjudicated at the former hearing, it is thereby concluded. The judge of probate has power to open an account, or any other proceeding before his court for the purpose of correcting an error, upon a petition for that purpose, or on the settlement of a new account.58 And it is not competent for the Court of Probate to decree the account of the personal representative passed upon by it, to be final, so as effectually to discharge him from

56 Probate Court v. Merriam, 8 Vt. R. 234; Saxton v. Chamberlain, 6 Pick.

422.

57 Saxton v. Chamberlain, 6 Pick. 422.

58 Stetson v. Bass, 9 Pick. 27; Boynton v. Dyer, 18 id. 1; Adams v. Adams, 21 Vt. R. 162.

any future responsibility to be called before the court, to correct errors in the former accounting, or to answer for matters not embraced in the former account. He should specify the particulars in regard to which he settles his account, and he will not thereafter be liable to be called to account for the same thing a second time, unless guilty of fraud in the former accounting, which must be charged and proved as the ground for again opening the matter.59

26. The matter is thus stated by us, in an early case 60 in Vermont the adjudications of probate courts upon executors' accounts are in the nature of proceedings in rem, and only conclude matters which are directly passed upon, and not those collaterally recited. The decree is conclusive for the purposes for which it was made, and no further. It is conclusive as to the amount in the hands of the executor for distribution, but not as to the fact of distribution. It will therefore conclude the residuary legatee as to the claims upon the funds prior to his own, for that is one purpose of the accounting, — but it will not conclude those prior claimants, whether creditors or legatees, as to the fact of their claims being paid by the executor, even where he is allowed to credit himself with the amount, as so much money paid, that issue not being determined by the

court.

50 Field v. Hitchcock, 14 Pick. 405; Adams v. Adams, 21 Vt. R. 162, where it is said such a decree on a former accounting may be opened to correct an error caused by fraud, accident, or mistake. Probate Court v. Merriam, 8 Vt. R. 234; Rix v. Heirs of Smith, 8 Vt. R. 365; s. c. 9 Vt. R. 240. In this latter case, it was said the court may correct errors in former accounts rendered before the court after any lapse of time short of twenty years; but this should only be done where the errors are apparent, or conceded by the parties, or proved beyond all doubt.

Sparhawk v. Buell, 9 Vt. R. 41.

CHAPTER XX.

DUTY ON LEGACIES, ETC.

§ 76. ALL legacies and distributive shares arising from personal property passing either by will or by the intestate laws of any state or territory, and also all personal property or interest therein transferred by deed, grant, bargain, sale, or gift, made or intended to take effect in possession or enjoyment after the death of the grantor or bargainor, whenever their amount exceeds the sum of $1000 actual value, shall be liable to duty or tax as follows, viz. :

"1. Where the person or persons entitled to any beneficial interest in such property, shall be the lineal issue or lineal ancestor, brother or sister, to the person who died possessed of such property as aforesaid, at the rate of one dollar for each and every hundred dollars of the clear value of such interest in such property.

2. Where the person or persons entitled to any beneficial interest in such property shall be a descendant of a brother or sister of the person who died possessed, as aforesaid, at the rate of two dollars for each and every hundred dollars of the clear value of such interest.

3. Where the person or persons entitled to any beneficial interest in such property shall be a brother or sister of the father or mother, or a descendant of the brother or sister of the father or mother of the person who died possessed, as aforesaid, at the rate of four dollars for each and every hundred dollars of the clear value of such interest.

4. Where the person or persons entitled to any beneficial interest in such property shall be a brother or sister of the grand

father or grandmother, or a descendant of the brother or sister of the grandfather or grandmother of the person who died possessed, as aforesaid, at the rate of five dollars for each and every hundred dollars of the clear value of such interest.

5. Where the person or persons entitled to any beneficial interest in such property shall be in any other degree of collateral consanguinity than is hereinbefore stated, or shall be a stranger in blood to the person who died possessed, as aforesaid, or shall be a body politic or corporate, at the rate of six dollars for each and every hundred of the clear value of such interest: Provided, that all property as legacies passing by will, or by the laws of any state or territory, to the husband or wife of the person who died possessed, as aforesaid, shall be exempt from tax or duty."

And a return of such property is to be made, and the tax to be paid, before payment or distribution. And all persons making fraudulent returns, or keeping back information in regard to such property, shall be liable to a fine of $ 500.1

The term "real estate" shall, for the purposes of this act, include all lands, tenements, and hereditaments, corporeal and incorporeal; the term "succession " shall denote the devolution of title to any real estate; and the term "person" shall be held to include persons, body corporate, company or association; the term "successor" shall denote any person beneficially entitled, in possession or expectancy, to any real estate, or the income thereof, upon the death of any person dying after the passing of this act; and the term "predecessor" shall denote the grantor, testator, ancestor, or other person, from whom the interest of the successor has been or shall be derived.

1

A charge upon any real estate, determinable by the death of

1 U. S. Stat. at Large, 38th Congress, Sess. 1, (1864,) ch. 173, § 124-5. We have no space to devote to any elucidation of this topic, and if we had, the present does not seem to be the time for much enlargement, since very few authoritative decisions have yet occurred. We here insert an abstract of the provisions of the United States statute in regard to successions.

any person, or ascertainable only by reference to his death, is to be deemed a succession.

Persons taking succession jointly are to pay duty in proportion to their respective interests, and any beneficial interests accruing to any of them by survivorship is to be deemed a new succession, derived from the original predecessor.

Benefits accruing from the determination by death of any charge upon real estate are to be deemed successions, equal in annual value to the yearly amount or yearly value of such benefits. And where any real estate is so disposed of, that by means of some arrangement of legal or equitable force the beneficial ownership is reserved to the grantor or other person for a period only ascertainable by reference to death, but the title passes such disposition, shall be deemed to confer a succession on the person for whom the disposition was made.

Disposition of real estate by deed without valuable consideration shall be taken to confer a succession on the grantee.

The rates of duty on successions to real estate are the same as those for legacies of personal property. If the interest of any successor shall have passed to other successors, the one first entitled to possession shall be liable for only one duty at the highest rate chargeable to any one of the successors.

Duties on successions, vested by alienation or by any title not conferring a new succession, are payable at the same rate and time as if no such alienation had been made, or title created; and where the title to a succession is accelerated by the surrender or extinction of prior title, the duty is payable at the time of such surrender or extinction.

A duty of six per cent is payable on the value of real estate subject to trust for charitable purposes.

Duties are to be paid when the successor becomes entitled to possession. The duty on the increased value of a succession, accruing upon the termination of any charge thereupon, not created by the successor himself, shall, if not compounded for, be payable at the time of such determination.