58 Vt. 485 | Vt. | 1884
The opinion of the court was delivered by
If the orders made upon the plaintiff by the' judge of probate created a debt against the plaintiff, his subsequent imprisonment for non-compliance with them was unlawful. In re Bingham, 32 Vt. 329.
When brought up on habeas corpus he was released by Redfield, J., who seems to have regarded Bingham’s case as controlling. In re John Leach, 51 Vt. 630.
The statute in force when these orders were made, Gen. St. c. 49, s. 29, reads: “ All the estate of the testator, real and personal, shall be liable to be disposed of for the payment of his debts and the expenses of administering his estate; and the Probate Court may make such reasonable allowance as may be judged necessary for expenses of the maintenance of the widow and minor children, or either, constituting the family of the testator, out of his personal estate, or the income of his real estate, during the progress of the settlement of the estate, but never for a longer period than until their shares in the estate shall be assigned to them.”
In the case of intestate estates, the language of the statute then in force, Gen. St. c. 51, s. 1, sub-s. 2, is: “The widow and children, constituting the family of the deceased, shall have such reasonable allowance out of the personal estate as the Probate Court shall judge necessary for
In the Revision of 1880 no distinction is made between testate and intestate estates as to the allowance made to the widow and children, which leads to the inference that the legislature regarded the two sections above quoted as identical in scope and spirit if not in letter. The two sections are now embodied in s. 2109 R. L.
This court in Sawyer v. Sawyer, 28 Vt. 245, construed these two sectioxxs as practically idexxtical.
Although a testator is allowed to control the destixxation of his property after his decease, still it is to be doxxe subject to certain restrictioxxs made by the statute. Sec. 29, c. 49, Gexx. St. declares that all the estate, real and personal, of a testator shall respond to debts axxd expenses of administration. The succeeding clause, under which these orders were made, subjects all the estate to the further burdexx of maintaixxixxg the widow and children so far as the Probate Court may judge necessary. In other words, the statute appropriates the assets to this purpose, but leaves the amouxxt to be fixed in the discretion of the Probate Court. Debts, ex-pexxses of administration, axxd a reasonable allowance for the support of the family, are preferred claims upon the assets which the testator cannot igxxore in his dispositioxx of the estate.
In Leach v. Leach, 51 Vt. 440, being an appeal from one of these orders, this court said that the order “appropriates the assets and property of the estate for present and current use and consumption without return from anybody in any form or maxixxer.”
"When the widow then applied in this case for an allowance for support, she was not making a claim which called for the litigation of any doubtful matters or the settlement of axxy coxxtexxtion with the executor or the estate he rep-x’esented; but she made claim to an allowance which the law gave her; and it did not depend upon the executor’s assent or
. Now in all this there is no element of personal indebtedness existing against the executor. No judgment is rendered against him; no contract obligation of his is found. The executor is not ordered to pay a debt, but to perform an administrative act respecting the assets of the estate to which they are subjected by law. The order upon him to pay this allowance no more creates a debt against him than does the customary order made by the court to pay the claims allowed by commissioners.
In this view of the statute it is clear that the plaintiff was not committed to jail for the non-payment of a debt; and so Bingham’s case is not in point.
Sec. 15, c. 48, Gen. St. empowers probate courts to issue warrants for the imprisonment of persons refusing to perform its orders.
In Bingham’s case the court said: “We should not be inclined to question that it might have been the purpose of this statute to enable the probate courts to require specific acts to be done by their officers and appointees for the furtherance of justice and equity and the due administration of the law in regard to matters pending in that court” * * * “ and might enforce such decrees by process of contempt under the sections (of the statute) alluded to.”
The order in this case imposed a mere ministerial duty on the executor, and we can conceive of no case where this statute can have effect if this be not one.
