Moore v. Bachelder, 51 Vt. 50

Moore v. Bachelder

51 Vt. 50 | Vt. | 1878

The opinion of the court was delivered by

Ross, J.

By sections 14 and 15, c. 53, Gen. Sts., it is only those who have claims against an estate who are required to present them to the commissioners for allowance or the claims become barred. By section 9, the executor or administrator is to present claims of the estate in set-off to such claims. There is no provision for presenting the claims of the estate to the commissioners for allowance except in set-off to the claims presented by creditors of the estate. When the creditor comes before the commissioner with his claim for allowance, he submits himself and it to the jurisdiction of the commissioners and the Probate Court. The administrator of the estate, unauthorized by the creditor, has no power to present his claim and bind him. The creditor has the right, before the commissioners have acted on his claim, to withdraw it, and if he does so the jurisdiction of the commissioners over the claims presented in set-off by the administrator is taken away. Allen v. Rice, 22 Vt. 333. It matters not that the commissioners returned their allowance of the defendant’s claim presented to them by the administrator and of the claim of the estate in set-off to the Probate Court, and the court accepted and recorded their acceptance of the commissioners’ report. The question is, whether the presentation of the defendant’s claim by the administrator without authority to the commissioners, gave them any *52jurisdiction over the defendant and his claim, and not whether their action thereon was accepted and recorded by the Probate Court. By the statute the commissioners and the Probate Court could only acquire jurisdiction over the defendant and his claim, by his voluntarily submitting himself and it to their jurisdiction, or before their final action by adopting and acquiescing in the act of some one who had acted for him in that behalf. Nothing of the kind was done in the case at bar, and the action of the commissioners and Probate Court on the presentation of defendant’s claim by the administrator without authority was invalid and void; Hence the claim in favor of the estate on which this suit is brought, did not by such action become merged in a judgment of the Probate Court. The claim of the estate against the defendant stands unaffected by the action of the commissioners and Probate Court thereon, and the plaintiff can maintain his suit thereon.

Judgment affirmed.