correct, and it will be unnecessary to con-, shall be a valid distribution of said estate." sider other facts found by the trial judge General Statutes (Rev. 1875) p. 372, § 5. which it is claimed by the appellee would support the judgment appealed from had there been no valid distribution under the statute.

means that it shall be by a written instrument signed like deeds of land. This was the language of the section in the 1866 Revision of the Statutes. The intention of the parties to the instrument is very clearly expressed; it is to divide the estate after settlement as the intestate by an unsigned will had indicated his intention to divide it, and we think that the statutory requirements were fulfilled by it.

have executed it, and this is true whether a previous ascertainment of the distributees had been reached or not. No practical good therefore could result from such previous ascertainment of the distributees.

left with the administratrix, and she had

[6] The statute clearly contemplates that the filing and recording of the distribution will be subsequent to the approval of the administration account. It fixes no time within which it must be made. It ought doubtless [5] It is further claimed that the division to be filed more promptly than was done in was made too early and filed and recorded the present case, but, it appearing that the too late. It is said that a distribution can- distribution had been made according to the not be made until the administration acterms of the instrument, it was proper to count has been allowed, and it is thus ascerreceive and record it at any time provided tained what property there is for distribu- no other distribution had then been ordered. tion, nor until the court has ascertained and If after the administration account was setordered to whom the property shall be distled the court had appointed distributors and tributed. In Mathews' Appeal, 72 Conn. 555, a distribution had been made by them and 556, 45 Atl. 170, where a division had been turned over the estate to the distributees in made by the distributees and filed and recorded in court before the administration ac- accordance with its terms, but had neglected count had been allowed, it was held that to return the distribution or make return of such a distribution could not oust the court her doings under it to the court of probate of probate of its jurisdiction over the settle- prior to her death, can it be doubted that ment of the estate. There can, of course, be upon proof of these facts it would be the no valid distribution of the estate prior to duty of the court to receive and record that the settlement of the administration account. distribution if returned to it by her execuAnd ordinarily a division will not be attempt-trix with a return showing that the estate ed until the amount of the estate on hand for distribution has been ascertained. Any division of the property by the heirs before the administrator has filed his account will

had been distributed in accordance there-
with? It seems beyond question that it
And it seems to
would be its duty to do so.
us to be equally beyond question that it was

its duty to accept and record the distribu

tion made by the distributees which had been

fully carried out by the administratrix.

be subject to the final settlement of that account. And a statutory distribution, whether by distributees or by appointed distribu[7] It is claimed, further, that the statute tors, can only take effect after the adminis- requires that a division made by the distration account has been settled. The court tributees shall be filed by all of them, and of probate cannot properly appoint distribu- it is said that, as three of them were dead at tors, nor should it receive and record a dis- the time the distribution was filed, this was tribution made by the distributees until that impossible. It is admitted, however, that the event has occurred. But we see no reason statute will not bear the strict construction why the distributees may not, where the which would require that all should be physnature of the estate and the character of ically present in court at the time of the the division made are such as to permit it, filing. There is nothing in the record to anticipate the allowance of the account and show that the court of probate did not have execute this agreement of division in ad- jurisdiction to receive and record the distrivance. We think that if a division so exe-bution. That action of the court of probate cuted, proper in other respects, should be is not appealed from. Upon an appeal from presented after the administration account has been settled, it should be received and recorded by the court of probate as a valid distribution. There is obviously no reason why the persons interested should postpone the making of a division until after the ascertainment of the distributees by the court of probate. Such ascertainment of the heirs at law is a mere incident of the distribution. Mack's Appeal, 71 Conn. 122, 129, 41 Atl. 242. If when filed it does not appear that the proper persons and all the proper persons have executed the agreement of distribution, the court should refuse to receive and record it. If the court records it, a finding that the parties therein described are the distributees is implied. The court should not record it

other orders, that action will be assumed to be correct unless it appears to have been beyond the court's jurisdiction. If the court having jurisdiction for some reason improperly received and recorded Exhibit A, the appellant's remedy was by an appeal from that order. It cannot, on this appeal, ask that it be assumed that the court acted beyond its jurisdiction because it appears that three of the parties were dead. During their lifetime they may have authorized the filing, and, having received their full shares under the instrument, their deaths would not revoke the authority to file it for record. The burden is upon the appellant upon this appeal to show that the court's action in receiving and recording Exhibit A was beyond

[8] To the appellant's claim that the re-object of the statute in question is to provide ceiving and recording of Exhibit A did not ways by which, through the arbitration of disconstitute an order of distribution it seems interested persons, or by mutual agreement, enough to say that the statute provides that of all persons interested, the rights of all the when such a division, proper in substance distributees may be finally determined and and form, has been filed and recorded, it shall be a valid distribution. The receiving and ordering this instrument recorded made it a valid distribution just as receiving and ordering recorded a distribution made by appointed distributors would make that a valid distribution. No further or other order was necessary. It is the duty of the court, in either case, to refuse to receive and record an improper distribution, and failure to do so would give ground for an injured party to appeal.

the action of the administrator in handing over the property effectually safeguarded. Merwin's Appeal, 75 Conn. 33, 37, 52 Atl. 484. These are the only means provided by statute for fully accomplishing this. But the same case holds that a division made by the distributees among themselves, not in accordance with the statute, is good except that it fails to safeguard the administrator. And in Dickinson's Appeal, 54 Conn. 224, 6 Atl. 422, it is said that this formal distribution under the statute is not necessary to make a valid [9] It is next contended that the distribu- title, and that the mere contract without tion is not valid because it does not divide these formalities would be binding between the estate among the distributees in the pro- the parties, and would be enforced between portions prescribed by the statute of distri- them even after a different division had been butions. Revised Statutes 1875, p. 372, § 6. made by distributors appointed by the court. Assuming it to be true that the division The statute says that a distribution shall be should have been in accordance with the stat-made, that is, according to the statute of disute referred to, how can the appellant take tributions, by disinterested persons, etc., unadvantage of the fact in this proceeding? less the persons interested in the estate shall This appeal is not from that distribution. It make and file a division, etc. It does not say was within the jurisdiction of the court of that the division shall be according to the probate to receive and record the distribution statute of distributions. It does not use the made by the distributees. Neither of these word "distribute." It says only that the diappeals is from that order of distribution, vision, when made with the formalities preand the appeals bring up for review only the scribed, and filed and recorded, shall be a orders appealed from. Richardson v. Rich- valid distribution. The words "distribute" ardson, 2 Root, 159. Where a mistake was and "distribution" have a technical meaning made by distributors appointed by the court in our probate law. Had the statute intendand the court accepted and recorded the dis-ed simply that intestate estates should be distribution which was made, it was held that the superior court, in an action brought to correct the mistake, could not correct it, and that the remedy was by appeal from the distribution. Gates v. Treat, 17 Conn. 388, 392. In the case in hand, if an improper distribution was made, the appellant's remedy was by appeal from the order of distribution. But we think that there is nothing to the claim that the distributees could only divide the estate among themselves in the proportions prescribed by the statute of distributions. When the distribution is made by appointed distributors, it must be in accordance with the statute of distributions so far as that is possible. But exact compliance is scarcely possible. Exact equality of shares is hardly attainable.

[10] But when the statute gives the distributees the privilege of making a division among themselves, it is intended that they may divide the property as they see fit. They might, by transfers made immediately after the distribution, so divide it, and we see no reason why they may not so divide it under this statute. As said by the trial court in its memorandum of decision, the privilege would be a barren one if under it they can only make a division which none of them may desire, and which leaves them to carry out their real wishes by cross-conveyances

tributed according to the statute of distributions, whether the act of division was by disinterested or interested persons, it would, as in the former case, naturally have used the word "distribution" instead of the word "division" in the latter case, and saved the necessity for the explanation that the division when recorded, shall be a valid distribution. The apparent purpose of this provision in section 5, p. 372, Revision of 1875, was to provide a way for making agreements of division which would be effective between the parties without the formalities prescribed valid as distributions, and thus binding upon and safeguarding all parties when duly filed and recorded and not appealed from.

We do not understand that the appellant's third reason of appeal was pressed in case it should be held that Exhibit A was a valid distribution. There having been a valid distribution recorded by the court of probate having jurisdiction, the superior court properly set aside the order appointing the administrator de bonis non. That he or Mrs. Goodno were attacking by an action in the superior court the distribution which stands unappealed from, and which therefore the superior court would have no power to change or set aside (Gates v. Treat, 17 Coun. 388, 392), afforded no reason why the order appointing him should stand.

ings are denied. Most of the findings referred | 6. APPEAL AND ERROR 194
to relate to the questions to which we have
BELOW-PLEADING.
referred as raised and argued by the coun-
sel for the appellee, which we have found it
unnecessary to consider. The findings, there-
fore, become unimportant. One or two of the
findings complained of relate to the questions
which we have considered. These findings
are supported by the evidence and admissions
of the pleadings.

tion that defendant, under the express provi-
In an action on a forged note, a conten-
sion of Gen. St. 1902, § 609, by failing to deny,
admitted that he executed and delivered the
note could not be considered when presented
for the first time on appeal.

There is no error. The other Judges concurred.

(Supreme Court of Errors of Connecticut. July surance agent, the defendant gave him his 16, 1915.) note payable at Second National Bank of 1. BILLS AND NOTES 497-ACTION ON NOTE New Haven for the amount of and in antici-HOLDER IN DUE COURSE-PROOF-JUDG-pation of one year's premiums on his life in

which he transferred to the plaintiff, was with McDermott to cause the defendant to shown to have been defective, the burden distrust him. He could not anticipate that was on the plaintiff to prove that it acquir- McDermott would alter this paper and by his ed its title as a holder in due course. Gen- criminal act make it upon its face a live neeral Statutes, § 4229. In the hands of one gotiable note and thereafter effect its negoother than a holder in due course it was tiation. Had this instrument been an existopen to the same defenses as if it were non-ent, but an incomplete, note and McDermott, negotiable in the hands of any holder other to whom it had been intrusted, had frauduthan one in due course. General Statutes, & 4228. One of the statutory essentials to constitute one a holder in due course of a negotiable note is that he became the holder of it before it was due, and without notice that it had been previously dishonored.

[2] One who innocently negotiates a note after it has matured and been paid and been fraudulently altered as to date and time of payment is not a holder in due course. For merly, material alterations in an existing negotiable note without the consent of the parties to be bound thereby made the instrument void as to them in the hands of an innocent holder.

[3] The first sentence of General Statutes, 4294, re-enacts the law as it was; the second sentence adds to it a new exception. It is:

"But when an instrument has been materially altered and is in the hands of a holder in due course, not a party to the alteration, he may enforce payment thereof according to its original tenor."

As it seems to us, the obvious intention of this provision was to cover material alterations of a note not yet due. It has no application to alterations in a note overdue. Pensacola State Bank v. Melton (D. C.) 210 Fed. 57.

lently completed it and then negotiated it, the maker should be held to have foreseen that his conduct might lead to this result and the title of the innocent holder be held good. But the maker cannot reasonably be held to foresee that the trusted holder of a fully completed note will fraudulently alter its terms and then negotiate it, and negligence cannot be predicated upon the failure to anticipate this result. Etna National Bank v. Winchester, 43 Conn. 391; Exchange Bank v. Bank of Little Rock, 58 Fed. 140, 7 C. C. A. 111, 22 L. R. A. 686; National Exchange Bank v. Lester, 194 N. Y. 461, 87 N. E. 779, 21 L. R. A. (N. S.) 402, 16 Ann. Cas. 770; Greenfield Savings Bank v. Stowell, 123 Mass. 196, 25 Am. Rep. 67.

The plaintiff relies upon the case of Rockville National Bank v. Citizens' Gas Light Co., 72 Conn. 576, 45 Atl. 361, as decisive of this case. The cases are dissimilar. In the Rockville Bank Case bonds of the gas company had been paid before maturity and left uncanceled in the hands of its treasurer and never reissued. The treasurer wrongfully negotiated the bonds. The bonds were on their face good; they were not overdue; they had not been altered in any particular. A purchaser without notice of defect in the [4] The plaintiff further claims that in per- bonds should acquire a good title, and the mitting McDermott to retain the note of Sep-maker of the bonds should, through its negtember 9th, after it had been paid and de- ligence in putting the bonds into circulation, livered to him, and thus giving him the op- be estopped to deny the holder's title. In portunity to alter the note and negotiate it this case the note had matured and been with the plaintiff, the defendant was negli-paid; upon its face it was not negotiable; gent, and because of his negligence should be the agent of the maker fraudulently altered estopped to deny his liability upon the note to the plaintiff. The trial judge has found that the defendant was careless in allowing McDermott to retain this note after it had been paid, but he has declined to hold that, as a consequence, the defendant was liable. We do not think this finding compels such conclusion. In a sense it was careless to leave the note with McDermott after it had been paid, but the business and personal relations of confidence of the defendant with McDermott made natural a less careful course than would have been reasonable with one with whom long-continued business and friendly relations had not existed. We cannot say as matter of law that such conduct, under the circumstances of this case, was negligence, and we are satisfied the trial court did not intend such a conclusion, either as a matter of law or fact. The note was a completed note, paid and discharged at maturity. It had ceased to have a legal existence. It was a mere bit of paper. There

the note and gave it the appearance of validity and then negotiated it. Had the note been paid before maturity and negotiated before maturity without alteration, the case would be governed by the Rockville Bank Case.

[5] When the plaintiff on November 22d discounted the note described in the second count, it delivered to McDermott the note of July 20, 1909, and the plaintiff contends that in giving up the note of July 20th in substitution of that of November 22d, it gave up something of value, and as the note of November 22d was not paid at maturity, the substitution of this note for that of July 20th was not payment of the latter note, and it is therefore entitled to recover upon it. The finding disposes of this point, for it recites that the defendant never signed the note of July 20th; hence that note never had a valid existence and the substitution for it of the note of November 22d gave up nothing of value to the plaintiff.