declarations of the deceased relevant to the Held that, the statute being remedial, the word matters in issue may be received in evidence. "actions" as so used should be construed to include a judicial settlement of executors' accounts, so that, on an objection that one of the an asset of the estate an indebtedness alleged executors had not charged in the account as to be owing by him to the testator, declarations of the testator in his lifetime with reference to the executor's indebtedness to him were admissible. a situation which renders defective a high- | ceased persons, the entries, memoranda, and way, or portion of highway, in respect to which it owes the duty of repair, the party injured can have no other redress than that furnished by section 2020. It says that in such case there can be no action founded on negligence apart from the statute, and that the remedy as for a defective highway is exclusive. We cannot agree with this contention, and fail to discover any sound reason why the giving of the statutory remedy as a penalty for the commission of a public wrong and the sanction of a statutory mandate which is concerned with the performance of a governmental duty should, in the absence of express provision, operate to deprive a party of rights of action immemorially recognized, and which grow out of the private relations of man to man. On the contrary, we are of the opinion that in a proper case a party injured may have his election whether he will avail himself of the remedy of the statute or that of the common law. See Conway v. Waterbury, 84 Conn. 345, 80 Atl. 83; Hinckley v. Danbury, 82 Conn. 241, 242, 70 Atl. 590. In the present case the complaint states a good cause of action at common law. Furthermore, it is apparent from its allegations and those it does not contain that the pleader was studiously attempting to state a cause of action of that character. The two-month limitation as to notice contained in section 2020 is therefore inapplicable, and the pertinent limitation is that of four months, embodied in section 1130. There is error, and the judgment is set aside and the cause remanded to be proceeded with according to law. All concur. (84 Conn. 659) MULCAHY v. MULCAHY et al. (Supreme Court of Errors of Connecticut. Nov. 1, 1911.) 1. EXECUTORS AND ADMINISTRATORS (8 70*)INVENTORY-CORRECTION. In a proceeding to correct an inventory of an estate by including therein an indebtedness against one of the executors, the burden of proving the omitted debt was on the objector. [Ed. Note. For other cases, see Executors and Administrators, Dec. Dig. § 70.*] 2. EXECUTORS AND ADMINISTRATORS (§ 70*)— FINAL ACCOUNT OMISSION OF ASSETS. [Ed. Note.-For other cases, see Evidence, Cent. Dig. §§ 1094, 1095; Dec. Dig. § 271.* For other definitions, see Words and Phrases, vol. 1, pp. 128-140; vol. 8, p. 7563.] Appeal from Superior Court, Hartford County; William H. Williams, Judge. Action by William J. Mulcahy against Thomas F. Mulcahy and others. From certain orders of the probate court in the course of the settlement of a decedent's estate, plaintiff appeals. Reversed, and new trial ordered. William M. Maltbie, for appellant. Stanley W. Edwards, for appellees. PRENTICE, J. This appeal was taken from two orders of the court of probate made in the course of the settlement of the testate estate of a decedent-one denying the petition of an heir at law and legatee that the inventory filed by the executors be corrected by including therein a debt claimed to have been owing from one of the executors to the deceased, but not inventoried, or that the executors be required to so correct the inventory, and the other accepting and allowing the final account later filed by the executors, in which said claimed indebtedness did not appear as an asset of the estate. The appeal also complained of the acceptance of this account for another reason, which requires no attention at our hands. No question is made as to the power of the court of probate or of the superior court on appeal to entertain the two petitions under consideration, and to grant the relief asked for in them. The only questions presented here relate to the rulings of the superior court during the progress of its hearing, and in arriving at its decisions and judgment. In the superior court, upon the hearing When executors have charged themselves on appeal, the appellant claimed that the with the amount of the inventory as previously burden of proof was not upon him to estabdetermined for the purposes of the administra- lish the claimed indebtedness, but upon the tion, and have made oath to the account, the claimed debtor executor. This claim was burden of sustaining correctness of the account correctly overruled. While the appeal to is prima facie sustained, and it then devolves on one objecting that the account did not contain the superior court was single, it involved an indebtedness against one of the executors two orders independently and successively to establish the existence of the debt. made in the course of the settlement of the estate. [Ed. Note. For other cases, see Executors and Administrators, Dec. Dig. § 70.*] [1] The first related to the correction of 3. EVIDENCE ( 271*)-DECLARATIONS OF PER- the inventory. As related to the petition SONS SINCE DECEASED-"ACTIONS." Gen. St. 1902, § 705, provides that, in ac- to secure this correction, the burden of provtions by or against the representatives of de-ing the asserted fact, that there were unin ventoried assets, was clearly upon the appellant, who made the assertion and prayed relief. 243 ing its meaning." National Fireproofing Co. v. Huntington, 81 Conn. 632, 633, 71 Atl. 911 (20 L. R. A. [N. S.] 261, 129 Am. St. Rep. [2] Coming to the later order, accepting 228). "In construing the legislative lanthe final account, it is doubtless true that guage, therefore, we are bound as far as we the ultimate burden of satisfying the court may to give effect to the legislative intent of the correctness of the account was upon and advance the remedy manifestly sought the executors. When, however, they made to be supplied. To this end, adherence to oath to it, as they were required to do, and the strict meaning of words and the precise it appeared that in it they had charged letter of the language is not required." Stathemselves with the amount of the inventory pleberg v. Stapleberg, 77 Conn. 31, 35, 58 Atl. as previously determined for the purpose of 233, 234. In giving such construction, "the the court's action in administering the es- application of common sense to the language tate, they had so far discharged their duty is not to be excluded." Faulkner v. Solazzi, in the premises that, until the completeness 79 Conn. 541, 547, 65 Atl. 947, 949 (9 L. R. of the inventory was successfully challenged, A. [N. S.] 607). The statute under considerathe burden of establishing the correctness of tion is a highly remedial one. Its aim was their account in a matter concerning which to take away the great advantage which unit was the office of the inventory to speak der pre-existing law living persons had over had been sufficiently borne. The challenger the representatives of the deceased. Bissell in such a case would be in no more favor- v. Beckwith, 32 Conn. 509, 516; Rowland v. able position than he would be in a direct at- Philadelphia, W. & B. R. Co., 63 Conn. 415, tempt to secure a correction of the inventory. 417, 28 Atl. 102. This advantage was one Upon the trial it was further claimed by which found its expression in unwarranted the appellant that, if there was reasonable inroads upon estates of deceased persons in doubt as to the existence of the claimed favor of the living whose mouths were not indebtedness, the final account should not closed. The object of the statute was to be allowed until such doubt could be resolv- prevent these inroads. The method adopted ed by due process of law. It is to be no- was one whose purpose was to bring the ticed that the assignment of error based living and the representatives of the dead upon the overruling of this claim necessarily upon as equal a footing as possible before assumes, and without warrant, that the trial the courts by permitting the declarations, encourt entertained a doubt upon the subject tries, and memoranda of the dead to be of the existence of the alleged indebtedness. received and weighed in the evidential balIt also concedes that it might act in its dis-ance in connection with the assertion of the cretion. But, these matters aside, it is clear that the court acted properly in proceeding to determine the questions before it. [3] Upon the trial the appellant called a witness who was asked in regard to what statements, if any, he had heard the decedent make in regard to an indebtedness to him on the part of his son, the claimed debtor in question. Upon objection, the questions were excluded. It is conceded that the line of inquiry forbidden was improper unless authorized by section 705 of the General Statutes, which provides that "in actions by or against the representatives of deceased persons, the entries, memoranda, and declarations of the deceased relevant to the matter in issue, may be received as evidence," etc. It was clearly proper, if the proceeding before the court is to be regarded as an action by or against the representatives of a deceased person within the meaning and intent of the statute. Was it such an action? Our answer involves an interpretation of the legislative language. "All statutes, whether remedial or penal, should be construed according to the apparent intention of the Legislature, to be gathered from the entire language used in connection with the subject and purpose of the law." Bissell v. Beckwith, 32 Conn. 509, 516. "The mischief which the statute was designed to remedy is an important guide in ascertain living. It is clear that the evil which the statute was intended to remedy is as present in certain probate appeals as in any other judicial proceeding, and that the remedy provided by it would be as effective and beneficent in such appeals as anywhere. This is peculiarly true of those appeals which directly involve the amount of the net estate of a deceased person. With these considerations in view, let us examine the statute. We find, in the first place, that the remedy is confined to what are designated as "actions." This is a word which has been employed in a strict technical sense, but we have repeatedly said of it when used, as here, in statutes regulating judicial procedure, that it might well be used in a more general and comprehensive sense, embracing all proceedings in a court of justice for the purpose of obtaining such redress as the law provides. Waterbury Blank Book Mfg. Co. v. Hurlburt, 73 Conn. 715, 717, 49 Atl. 198; O'Brien's Petition, 79 Conn. 46, 59, 63 Atl. 777. In these two cases it was held that proceedings far removed from actions technically speaking came within the descriptive term of "actions.” Concrete application of the same liberal rule of construction has been made where the judicial proceeding was a probate appeal. Stile's Appeal, 41 Conn. 329, 330; Campbell's Appeal, 76 Conn. 284, 56 Atl. 554. The reasons which led to the results reached in these cases are equally present here, and lead to the conclusion that the present proceeding was an action within the intent and meaning of the statute. But was it an action by or against the representatives of the decedent? The appellees were the executors of the will of the deceased, and therefore his legal representatives. The redress which the appellant was seeking at the hands of the court grew out of their conduct in that capacity. Its aim was to compel them to act for the increase of the estate in their keeping as they were unwilling to do. They were in court opposing such action. Their position was adversary to the appellant, and it was so in a matter which directly concerned the quantum of net estate as distinctly as though a claim against it was being pressed for allowance and resisted. The situation is one which comes within the spirit and purpose of the statute, and we are of the opinion that it comes within its language interpreted according to recognized rules. The appellees rely upon Barber's Appeal, 63 Conn. 393, 412, 27 Atl. 973, 22 L. R. A. 90, as controlling authority for the proposition that the pending proceeding was not an action by or against the representatives of a deceased person within the intention of the statute. It is to be noted that the conclusion announced in that case was a no more comprehensive one than that the then appeal did not come within the provision of the statute. Unfortunately the opinion does not clearly state the court's reasons for reaching this result. As it recognized that probate appeals may be classed as actions, the inference is strong that it found its reasons in the nature of the appeal then under consideration, which was one from the probate of a will, and held that the conditions named in the statute were not in that proceeding complied with, because it was not one against the executors within its meaning. The difference between that appeal and the present, both in respect to their essential character and as touching their adversary nature as related to the executors, is marked. The only matter involved in Barber's Appeal was whether or not the estate of the deceased should be administered under a certain claimed will. In other words, the matter in issue was the status of the estate in settlement and the basis of its division when settled. The result could in no manner increase or diminish the quantum of the net estate. There was no issue as to the validity of a claim, or the right to an asset. The executors were simply proponents. We have already had occasion to notice the strikingly different aspects which the present proceeding presents. Beyond the fact that both were appeals from probate, there is an entire want of similarity between them. All the pertinent things which we have relied upon to bring the situation presented by the pending case within the spirit and intent of the statute were absent from the Barber Case. The opinion in that case certainly presents no reasons which militate in the least against our conclusion in this, and the result then arrived at, which is the only pertinent matter in the decision, is not one which by analogy possesses any real significance as to the result to be arrived at upon this appeal. There is error. The judgment is set aside and a new trial ordered. The other Judges concurred. (84 Conn. 646) HARTFORD TRUST CO. et al. v. TOWN OF WEST HARTFORD. (Supreme Court of Errors of Connecticut. Nov. 1, 1911.) 1. MUNICIPAL CORPORATIONS (§ 652*)—STREETS -BOUNDS-RE-ESTABLISHMENT. Strict compliance with the statute is a jurisdictional prerequisite to the validity of a establish the bounds of a street. proceeding under Gen. St. 1902, § 2083, to re [Ed. Note. For other cases, see Municipal Corporations, Dec. Dig. § 652.*] 2. CONSTITUTIONAL LAW (§ 291*)-DUE PROCESS OF LAW-STREETS-BOUNDS-RE-ESTABLISHMENT. proceedings to re-establish the bounds of a Rights of abutters can be affected by street only "by due course of law," and after opportunity to be heard. [Ed. Note.-For other cases, see Constitutional Law, Dec. Dig. § 291.*] 3. MUNICIPAL CORPORATIONS ($ 652*)-STREETS - BOUNDS RE-ESTABLISHMENT - REQUISITES. Under Gen. St. 1902, § 2083, providing that, in a proceeding to re-establish the bounds of a street, the selectmen "may" cause a map that notice as to when and where the map may showing existing conditions to be exhibited, and be seen "shall" be given, the requirement for its exhibition is mandatory. [Ed. Note. For other cases, see Municipal Corporations, Dec. Dig. § 652.*] 4. MUNICIPAL CORPORATIONS (§ 652*)-STREETS - BOUNDS RE-ESTABLISHMENT - NOTICE -SERVICE. Notice of proceedings under Gen. St. 1902, § 2083, to re-establish the bounds of a street, may be given by mail. [Ed. Note.-For other cases, see Municipal Corporations, Dec. Dig. § 652.*] 5. NOTICE ($ 10*)-SERVICE BY MAIL-PROOF. show compliance with the conditions of its exProof of service of notice by mail should istence, and show that the notice, properly addressed, with postage prepaid, was duly deposited in the mail. Dig. §§ 22-36; Dec. Dig. § 10.*] [Ed. Note. For other cases, see Notice, Cent. 6. MUNICIPAL CORPORATIONS (§ 652*)-STREETS BOUNDS RE-ESTABLISHMENT - NOTICE. Failure to give abutters notice of proceedings under Gen. St. 1902, § 2083, to re-establish Conn.) HARTFORD TRUST CO. v. TOWN OF WEST HARTFORD the bounds of a street, invalidates the proceedings as to them. [Ed. Note.-For other cases, see Municipal Corporations, Dec. Dig. § 652.*] 7. MUNICIPAL CORPORATIONS (§ 652*)-STREETS BOUNDS RE-ESTABLISHMENT NOTICE -SUFFICIENCY. In a proceeding under Gen. St. 1902, § 2083, to re-establish the bounds of a street, notice of the selectmen's decision given adjoining owners by mailing them marked copies of a newspaper containing an advertisement of the notice is insufficient. [Ed. Note. For other cases, see Municipal Corporations, Dec. Dig. § 652.*] 8. NOTICE (§ 11*)-SUFFICIENCY-NEWSPAPER ADVERTISEMENT. One cannot be charged with notice of what may be contained in the advertising columns of a newspaper, though the copy received by him be a marked copy. [Ed. Note.-For other cases, see Notice, Dec. Dig. § 11.*] 9. MUNICIPAL CORPORATIONS (§ 652*)-STREETS BOUNDS RE-ESTABLISHMENT - NOTICE -SUFFICIENCY. Recording of the decision of selectmen of a town in proceedings, under Gen. St. 1902, $ 2083, to re-establish the bounds of a street, was not constructive notice thereof to abutters which would cure failure to give actual notice. especially where the decision itself was void for failure to take the jurisdictional steps pre scribed by statute. [Ed. Note. For other cases, see Municipal Corporations, Dec. Dig. § 652.*] 10. MUNICIPAL CORPORATIONS (§ 652*)STREETS - BOUNDS RE-ESTABLISHMENT RIGHTS OF ABUTTERS. Abutters are not estopped to claim equitable relief against proceedings under Gen. St. 1902, § 2083, to re-establish the bounds of a street on account of jurisdictional defects, where they immediately protested to the selectmen on learning of the decision. [Ed. Note.-For other cases, see Municipal Corporations, Dec. Dig. § 652.*] 11. APPEAL AND ERROR (§ 750*)-SCOPE. Assignments of error are limited to the claims of law made in the trial court. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 3074-3083; Dec. Dig. 750.*] 12. EQUITY (§ 67*)-LACHES-REQUISITES. There can be no laches without breach of duty. [Ed. Note.-For other cases, see Equity, Cent. Dig. §§ 191-196; Dec. Dig. § 67.*] 245 offered to prove, and claims to have proven, facts conforming to the witness' answer. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 4161-4170; Dec. Dig. § 1051.*] Appeal from Superior Court, Hartford County; William L. Bennett, Judge. Actions by the Hartford Trust Company, administrator, and another, by John R. Fenn, by Caroline F. Roberts, and by Lewis F. Fenn and wife against the Town of West Hartford. Judgment in each case for plaintiffs, and defendant appeals. Affirmed. The plaintiffs own land on the south side of Farmington avenue in the town of West Hartford. On February 7, 1900, a proprietor of land adjoining this avenue made written for the establishment of the bounds of said application to the selectmen of said town avenue which had become lost and uncertain. Thereupon the selectmen caused to be printed a notice in conformity with the statute (now G. S. 1902, § 2083) of the place and time when and where all parties in interest might be heard. The statute (G. S. 2083) provided that, upon such application, the selectmen "may cause to be made a map of such highway, showing the fences and bounds as actually existing, and the bounds as claimed by adjoining proprietors, and shall also cause to be placed on said map such lines as in their judgment coincide with the lines of the highway as originally laid down." After this application, the selectmen prepared no map, but had at that time in their possession a map of said avenue, including the portion in question, prepared in 1898, without reference to section 2083. This map did not show the fences and bounds as claimed by adjoining proprietors. It contained one line only as the south line of said avenue, with nothing to show how it affected adjoining proprietors. The lines of the highway on the map are those which in the judgment of the selectmen coincided with the lines of the highway as originally laid down, but there was nothing on the map to indicate this. In fact, the true south line of the avenue at this 13. MUNICIPAL CORPORATIONS (§ 654*)-point runs about 22 feet north of the south STREETS - BOUNDS RE-ESTABLISHMENT EVIDENCE. In a suit to enjoin a street improvement conforming to proceedings under Gen. St. 1902, $2083, to re-establish the bounds of the street, void as to plaintiffs for want of notice, evidence offered by defendant to show previous establishment of building lines of which plaintiffs had notice was properly excluded as being immaterial and as inviting collateral inquiry; the time in which plaintiffs could have appealed from the decision of the selectmen on the re-establishment of the street line having then long since passed. [Ed. Note. For other cases, see Municipal Corporations, Dec. Dig. § 654.*] 14. APPEAL AND ERROR (§ 1051*)-HARMLESS ERROR-ADMISSION OF EVIDENCE. Any error in permitting a question to be asked a witness was harmless to defendant who line indicated on the map. The selectmen did not send any notice of said hearing to the plaintiffs, nor did they receive notice of the same by publication or otherwise. The hearing was duly held, but none of the plaintiffs were present or represented. The selectmen caused a notice of their decision to be printed in conformity with the statute, but did not send notice of their decision to the plaintiffs, nor had they notice or knowledge of the same. The decision adopted as the lines of the highway the lines on said map, the south line of which varied from the true line by about 21⁄2 feet. The town voted in the spring of 1909 to adopt certain plans for lowering the grade *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes · of the highway in front of plaintiffs' prem- | peal from their decision. Procuring the ises. Said plans, if carried out, would claims of adjoining proprietors preceding the lower the grade of the highway and extend exhibition of the map is indispensable; yet, the south line about 22 feet south of the so far as appears, no attempt was ever made true south line, making it correspond with to obtain these. The map exhibited did not the south line as attempted to be established conform to the statute. It did not contain by the decision. The plaintiffs learned of the actual fences and bounds, nor the bounds the proceedings for the re-establishment of as claimed by the adjoining proprietors. The the lines of the highway and of the deci- south line of the highway upon the map, sion of the selectmen in the spring of 1909. though believed by the selectmen to be as On September 4, 1909, the town and state originally laid out, was in fact 22 feet south entered into a contract to change the grade of the true south line, and the map itself did of said avenue in accordance with said not refer to any proceeding to establish lost plans. On November 5, 1909, this action and uncertain bounds. was begun. If carried out, these plans would take for highway purposes a strip of the plaintiffs' land adjoining the avenue on the south for its entire length, and would greatly disfigure and render unsightly and inaccessible their property, and cause them irreparable damage. William F. Henney and David Henney, for appellant. George O. Brott and George J. Stoner, for appellees. WHEELER, J. (after stating the facts as above). The defendant assigns as error the finding of the trial court that the proceedings taken to establish the lost and uncertain bounds of Farmington avenue were not taken in accordance with section 2083, G. S., in that the map of the highway was not prepared and exhibited, and the notice of the hearing and of the decision of the selectmen were not given, within the provisions of this statute. [1] Strict compliance with each of the enumerated steps of the statute was the condition of the validity of the entire proceeding. Failure to comply with any of the required steps would constitute a jurisdictional defect. Kiefer v. Bridgeport, 68 Conn. 405, 411, 412, 36 Atl. 801. [2] The plaintiffs' rights of property were involved, and could not be injured or destroyed, save by "due course of law," after hearing had and opportunity given to be heard. Northrop v. Waterbury, 81 Conn. 305, 309, 70 Atl. 1024; Nichols v. Bridgeport, 23 Conn. 189, 208, 60 Am. Dec. 636; Abbot v. Banfield, 43 N. H. 152, 155. [3] The statutory requirement in relation to the exhibition of the map is permissive in terms, but mandatory in effect. It says "may." It means "must," for it recites the selectmen shall cause a notice to be printed and sent to each proprietor, setting forth the time and place when the aforesaid map may be seen. The obvious purpose of the statute was to afford proprietors the opportunity to see from an inspection of the map the relation the bounds claimed by the adjoining proprietors bore to the actual fences and bounds and the lines of the highway as originally laid out. With this knowledge the proprietors could protect their interests by making a suitable presentation of their claims [4] The notice of the hearing did not contain a description of the map called for by the statute. Evidence was offered that the notice of the hearing as published was sent to some of the proprietors, but none that any notice properly addressed with postage prepaid was duly mailed to these plaintiffs. The written or printed notice to be sent each known adjoining proprietor might properly be sent by mail. [5] Proof of service of notice by mail should show compliance with the conditions of its existence, and show that the notice, properly addressed, with postage prepaid, was duly deposited in the mail. 29 Cyc. pp. 1119, 1123. [6] The failure to send such a notice was fatal to the proceeding as against these plaintiffs. [7] The notice of the decision of the selectmen was given by mailing to each adjoining proprietor a marked copy of a newspaper containing an advertisement of the notice. This was ineffective as a legal notice. [8] One cannot be charged with notice of what may be contained in the advertising columns of a newspaper, though the copy received by him be a marked copy. Clark v. Ricker, 14 N. H. 44, 48; Watkins v. Peck, 13 N. H. 360, 373, 40 Am. Dec. 156; United States v. Pinover (D. C.) 3 Fed. 305, 308. Moreover, no evidence was offered that such a paper properly addressed with postage prepaid was duly mailed to any of these plaintiffs. The evidence fully supported the finding as to what the map contained and the sending and receipt of the notices. [9] We cannot agree with the defendant that the recording of the decision was constructive notice to these plaintiffs. In no event could the recording take the place of the notices required by the statute. Further, the decision as to these plaintiffs was a nullity, for, without compliance with the statutory steps, the selectmen were without jurisdiction to render it. Therefore the recording of the decision did not validate it, or make of it notice to any proprietor who had not been given the notices specified by the statute. [10] One other of the defendant's contentions remains to be noticed. It urges that "the plaintiffs, having had actual notice of the re-establishment proceedings, and having |