13 Vt. 657 | Vt. | 1839
-The opinion of the court was pronounced by
The matters stated in this bill .show a liability of the defendant to the administrator of Daniel Clark, and to him .only; and both in law and in chancery •the administrator is the only person who can pursue the .debtors of an estate. There is no privity between the creditors and debtors of an estate. As to the promise of the defendant to the orator, it was wholly without consideration, .and if of any binding force, it is good at law, and furnishes no independent ground of chancery relief.
In England, an executor gives no bond for the perforar-an ce of the duties of his appointment, and each creditor .stands independent of all others, and can enforce his debt in preference to all others, not of a higher nature. One cred,itor may there sustain a bill against a debtor of the estate, .suggesting collusion between the debtor and executor, and Insolvency of the executor; for if the executor will not.gol-
The necessity which'calls for such a proceeding can here never exist; for the executor always gives a bond, with sure-*ties, for the execution of his trust, and therefore his insolvency is immaterial, and collusion with a debtor, Or neglect to collect the debt, would be a breach of his duty. Again, in this state, where an estate is represented insolvent, the creditors have all a common interest in the assets, and entitled to their distributive share, and all debts must be so collected as to secure this right. This bill, by one creditor of an insolvent estate, to collect a debt due t'he estate, for his sole benefit, and that, too, without even joining the administrator, cannot be sustained, nor can the orator' sustain a bill in this case and in this state, against any parties he may join.
Demurrer allowed.- Bill dismissed/
