| Vt. | Jan 15, 1885
The opinion of the court was delivered by
At the hearing before the referees February 27, 1883, the plaintiff objected to further proceedings before the referees - on account of the death of the defendant; but his objection was ignored, and the hearing proceeded. It is
This petition was ultimately denied by the Probate Court; and the question presented for determination is, whether the plaintiff as matter of law had the right to call for the appointment of commissioners.
In the Probate Act of 1797, which was in force many years, it was provided that executors and administrators might, under an order of the Probate Court, by public notice, require creditors of the estate they represented, to exhibit to them their claims within a limited time, failing which such claims should be forever barred. It was further provided, that if the administrator supposed the estate to be insolvent, he should represent its conditions and circumstances to the Probate Court, and thereupon the court should appoint commissioners to adjust the claims of creditors. The act further provided, that attachments of property should be dissolved in pending suits only when commissioners were so appointed, and that no action should be maintained against the administrator without his consent. Under this act it manifestly rested with the administrator whether to apply for commissioners or not. From an inspection of the claims exhibited to him, he could well judge whether the assets were ample for their liquidation, or whether he was called upon to represent the estate as insolvent, and so compel creditors to accept a pro rata dividend upon the allowance of commissioners.
But now and for many years past all estates are settled as insolvent estates, without any formal representation of insolvency by the administrator; and no reason exists for
In all cases, save two exceptional ones, not material here to be noticed, the statute has provided a special tribunal which can adjudicate upon the claims of creditors at less expense and with greater expedition than the ordinary common law tribunals.
By s. 2130, R. L., all pending suits at the time commissioners are appointed shall be discontinued.
After such appointment no action can be continued against the estate, except for the recovery of real estate. 16 Vt. 82.
Our probate code has grown up into a system by itself, the leading idea of which is, to confer upon the Probate Court exclusive jurisdiction in .the settlement of estates. A board of commissioners to adjust the claims of creditors and offsets thereto is one of the instrumentalities provided, to accomplish this idea. Creditors have the same interest in the appointment of this board that the estate has; and the Probate Court owes the same duty to one as to the other.
In view of the general policy of the probate law, as well as the peremptory language of the section quoted above, we hold that creditors have the right to call for commissioners, if the court neglects its duty .to appoint.
The petitioner confessedly had a debt of near $300, and claimed a much larger one. The validity of his debt was not for the court to determine, as this would practically usurp the jurisdiction of the commissioners.
Section 2143 and following sections of Revised Laws were first found in the Judiciary Act of 1797, and seem originally to have been enacted rather to define the power of the court than to affect the settlement of estates. The language of these sections may seem to work an inconsist
The judgment of the County Court is reversed, and judgment rendered that the prayer of the petition be granted, and ordered that this judgment be certified to the Probate Court.