33 Vt. 84 | Vt. | 1860
The counsel for the widow and child of the intestate first claim, that under the 4th section of the homestead act, (Comp. Stat. 391,) providing for a homestead to be set out to the widow and children of a deceased housekeeper, such homestead is not subject to the claims of such housekeeper’s creditors, which accrued prior to Dec. 1, 1850, when the homestead act took effect, or to debts which accrued prior to'the purchase of the homestead, though by other sections of the act, the homestead is expressly made subject to such debts, in the lifetime of such housekeeper.
The considerations urged by the learned counsel 'in behalf of this position-, that the Legislature really intended to make ■ the' estate liable to such debts in the one oase, and not in' the other, would deserve serious attention, if we could regard it now as an
It is claimed, too-,- that this effect is produced by the act of' November 14, 1855, in amendment of the homestead law. (See Laws of 1855, p. 17.) But an examination of that act will show no intention to create any such distinction, if not intended in the original act itself. The language which it is claimed produces this effect, is literally copied from Sec. 4 of the original act. The great object of the act-of 1855, was to limit the right of homestead in the- estate of a deceased person to his widow and minor children, while under the'original act, children of any age, were all equally entitled, adults as well as minors. The act also makes some additional provisions relative to setting out homesteads.
We could not hold' that such effect was produced by the act of 1855, without overruling the decision in the 28th Yt. above referred to.
It is also claimed, that it was not properly proved in the County Court, that there were any debts against the estate which accrued prior to December 1, 1850, or prior to the purchase of' this homestead by Sargeant. It is insisted in the first place that it should appear upon the face of the commissioner’s report, and that no other evidence is admissible to prove when the debts-accrued.
But we are not prepared to adopt this conclusion. The duty of the commissioners is merely to allow all legal claims presented against the estate. They are not required to- ascertain when the claims accrued, or to make any discrimination between-claims that may be chargeable upon the homestead,- and those which are not; their only duty is to allow and report such claims as they find to be legal claims against the estate, without regard to the particular fund, to which they may resort for'
"We are satisfied the decree of the Probate Court setting out the homestead to the widow and child, without first providing for the payment of those debts properly chargeable against it,