Curtis v. Curtis

13 Vt. 517 | Vt. | 1841

The opinion of the court was delivered by

Redfield, J.

The action of account between co-executors does not lie at common law. It is given by statute, and the object and ground of the action specifically defined. "One executor may have this action against another, “ who neglects to pay the debts, &c., in proportion to the estate in his hands.” The object of the action would seem to be to compel the application of funds, for which the executors, either in conse-queñce of having given a joint bond, or from some other cause, are jointly liable to account before the probate court. This.action would seem to be a preliminary step in order to enable the executors to close their account before the probate court,' when either of the executors refuses to apply funds in his hands. To sustain this actidn, the declaration must be by one executor, as such, and on the grounds contemplated by the statute. Nothing of that kind appears in the declaration in this case. It is simply alleged, that while plaintiff and defendant were joint executors, four hundred dollars came to their hands jointly, which was in the hands of defendant at the time they were discharged, and plaintiff appointed administrator de bonis non, and which defendant then should have paid to plaintiff, but which he refused to do.

The account is claimed, not as co-executor, but as administrator de bonis non. The statute gives no such remedy. If the defendant, at the time of his discharge from the office of executor, had funds in his hands, belonging to the estate, he was liable to account for them before the probate court. When called upon to render his account there, by any one interested therein, if he refused, or if he was was found in arrear upon such accounting, he would be liable upon his bond. For any thing apparent upon this declaration, the defendant may have fully discharged his duty as executor to his co-executor, and, by any other person interested in the matter, he can only be called to account before the probate court, who have, in the first instance, exclusive jurisdiction in such matters.

Judgment affirmed.