66 Vt. 479 | Vt. | 1894
The cause was heard on a general demurrer to the bill. For a proper consideration of the contentions made, it is not necessary to set forth fully the substance of the bill. The orator stands upon the rights of his testatrix, Caroline A. Wood, who resided at her decease in Cambridge, Massachusetts. The defendant is heir-at-law of Lurena A. Hudson, who resided, at her decease, at Bethel, in this state, and who under the laws of Massachusetts had, as heir-at-law of Charles Wood, of Worcester, Massachusetts, received her proportionate share of his estate. No question is made but Caroline A. Wood’s estate had a contingent claim against the estate of Charles Wood which did not become absolute until after Charles Wood’s estate was lawfully distributed, and Lurena A. Hudson had received her share thereof. This claim did not become absolute until May 16, 1891. Wood v. Bullard, 151 Mass. 324, which decision is set forth in the bill. In paragraphs eleven and fifteen, and in that portion of the bill which sets forth the decision in Bullard v. Moor, 158 Mass. 418, a decision in which the orator procured the resident heirs of Charles Wood’s estate to be charged with the payment ol their proportionate shares of the claim, once contingent, but then become absolute, in favor of the estate represented by the orator, against the estate of Charles Wood, it is somewhat inartificially and argumentatively made to appear, that under the laws of Massachusetts, Lurena A. Hudson became liable to the orator to pay her proportionate share oí this claim. Although made a party to the suit of BiMard v. Moor, sifra, it is not claimed that that court ever had jur
If commissioners were duly appointed upon the estate of Lurena A. Hudson and the estate was duly settled and distributed, the orator’s claim is now barred from failure to present it. The orator’s bill contains no allegation upon the subject of whether commissioners were or were not appointed upon the estate of Lurena A. Hudson. It is contended by the defendant that, inasmuch as the probate court is a court of record, this court should presume that it duly appointed commissioners on her estate. If the probate court were required in all cases to appoint such commissioners in the settlement of every estate, this court might be required to make such a presumption. But by R. L., 2115, it is not the duty of the probate court to appoint commissioners on estates where it is made to appear there are no debts against the deceased, nor where the estate does not exceed three hundred dollars. It appears that this estate exceeded three hundred dollars, but there are no allegations in the bill in regard to what was made to appear in the probate court with reference to existing debts against Mrs. Hudson.
We cannot, therefore, presume that commissioners were appointed, nor that the estate was otherwise duly proceeded with in its settlement. Hence on the admitted allegations we cannot say that the orator has been legally barred of his rights against the defendant, if any su£h right he has, by the proceedings taken to settle the estate of Lurena A. Hudson. It is contended that if the orator has any rights against the defendant they are available to him at law. But the estate of Lurena A. Hudson, having been settled and paid over to the defendant, on the facts admitted, no way of
“And the persons who, as heirs, have received the estate not disposed of by will, shall be liable to contribute like the devisees or legatees.”
R. L., 2183 to 2188, inclusive, were incorporated into the Revised Statutes of 1839. As there enacted the. provision quoted was confined to heirs who receive that portion of the estate not disposed of by will, as set forth in the last sentence of R. L., 2183. There seems to be no provision in the statutes by which a creditor of an estate duly and legally distributed under the statutes of this state to the heirs-at-law is given a remedy either at law or in equity. It seems to have been assumed that such estates would be-so settled that all creditors would be legally barred from presenting their claims. Yet R. L., 2182, charges an estate with the payment of the debts against it; first, out of the personal estate, and then out of the real estate. Nor can the debtor, by his will, convey away his estate so that it cannot be taken for such payment. Dunbar v. Dunbar Exrs., 3 Vt. 472. This charge may be established and asserted in equity by pursuing the property of the estate, if it has been distributed by a decree of the probate court without due and legal administration. If due administration on the estate of Lurena A. Hudson has been defeated by honestly and mistakenly, or fraudulently representing to the probate court that there were no debts due from her at her decease, and for that reason no commissioners were appointed, or if for any other reason the estate was not lawfully settled and distributed, on the authority of Dickey v. Corliss, 41 Vt. 127, the orator may be entitled to relief in equity. His bill proceeds upon the basis that his claim against the estate of Lurena A. Hudson was contingent at her decease and during the settlement of her estate. But the facts set forth and
Decree affirmed and cause remanded.