Clark v. Tabor

22 Vt. 595 | Vt. | 1850

The opinion of the court was delivered by

Bennett, J.

The plea in abatement alleges, that the administrator had not, at the time, this suit was commenced, given any administration bond ; and this is traversed. The question for consideration is, do the facts in evidence, and which were proved in the county court, constitute legal proof, that a bond had been executed prior to the institution of this suit 1

No question is raised in regard to the due appointment of the plaintiff, as administrator, before this suit was commenced; and the probate record shows the appointment to have been made on the eighth of May, 1849; and this suit was commenced the ninth of May. Whatever view we take of the subject, we think the evidence is clearly competent, and the issue established in favor of the plaintiff. The decree, or order, of the probate court, under date of the eighth of May, was, that the plaintiff be appointed administrator, &c., and that he give bonds, &c., and the record then proceeds to recite, that it appeared to the court, that Alanson M. Clark had executed a bond, agreeably to the order of the court, &c. This all purports to have been done on the eighth of May, and in contemplation of law the record is made as of that date.

The interpolation in the record, that the bond was received and filed in the probate office on the twenty sixth of May, is and can be no part of the record of what was done on the eighth of May ; and if we regard this as proper evidence, it can have but little tendency to show that to have been the true time, when the bond was executed.

If we regard the recitals in the record of the eighth of May as evidence of the bond having been then executed, which I am inclined to think should be the case, it was then shown by the record itself, that the administration bond was executed before this suit was commenced. But suppose the time of the execution of the bond to rest in parol, it is quite clear, that the facts found by the county court prove the bond to have been, for all legal purposes, executed on the eighth of May. The court of probate determined what should be the amount of the bond, and who should sign it; and in taking the delivery of the bond Mr. Smalley acted ministerially, and under the sanction of the court of probate, and in their behalf. It is the same, in legal effect, as if Mr. Smalley had been the register and had received the bond. Certainly it could not have been necessary, that it should have been filed in the probate office, to give it vitality. In either view, then, the affirmative of the issue was proved and should be found for the plaintiff.

But for myself I do not think, that the facts alleged in the plea constitute any legitimate matter of abatement, if true. The failure of the administrator to give the bond, in pursuance of the order of the probate court, may be good reason, why the probate court should vacate the appointment and refuse to issue the letters of administration, but cannot, I think, have the effect to render null and void the appointment per se. The power is conferred upon the administrator by the decree, or order, making the appointment. The letters of administration are only the evidence, that the power has been conferred. The appointment precedes the bond, though the statute directs, that, before he receives his letters and enters upon the duties of his office, he shall give the requisite bond.

It is clear, we think, that the county court should have given judgment on the issue for the plaintiff.

The result is, the judgment of the county court is reversed; and in this case we understand the counsel to agree, though issue is taken on the plea, yet that judgment be rendered, that the defendant answer over, — which the clerk will enter accordingly.