35 A.2d 495 | Vt. | 1944
This is an action brought pursuant to P.L. 3059 against the defendant as surety upon the bond of Carl Morgan, administrator of the estate of Harrison Gregg. The prosecutrix as an heir at law seeks to recover as damages the sum decreed to her by the probate court. Judgment was entered for the penalty of the bond, pursuant to the statute, and thereafter the cause was heard on the breaches of the bond assigned by the prosecutrix. Findings of fact were made and judgment was entered for the prosecutrix, to which the defendant has excepted.
So far as material to the exceptions briefed the findings show the appointment of Carl Morgan as administrator, and the decree of the probate court, which sets forth that the administrator having refused and neglected to render an account, and "it having been ascertained by said court that the gross amount of said estate is $4148.09 which includes certain real estate in the Town of Johnson, valued at $600.00, therefore, the said probate court, as a matter of discretion doth hereby decree said estate to the heirs as follows: One-third interest in real estate to Carrie Morgan of Rutland, Vt., one-third interest in real estate to Helen Selleck of Rutland, Vt., one-third interest in real estate to Gladys Fisk of Morristown, Vt., also one-third interest in the personal property to Carrie Morgan, one-third interest in the personal property to Helen Selleck, one-third interest in the personal property to Gladys Fisk, all of which is subject to a collateral inheritance tax of $207.40, and the balance of the probate fees. To have and to hold the same as aforesaid to Carrie Morgan, Helen Selleck and Gladys Fisk, heirs, executors, administrators and assigns forever. And said Carl Morgan is ordered to pay over and deliver said estate according to said decree within ten days."
At the trial the defendant offered a copy of the commissioners' report showing claims allowed against the estate, and also offered to show a number of items paid by the administrator in the administration of the estate, including funeral expenses. These were all excluded on the ground that the decree of the probate court was conclusive, and the defendant excepted. As stated in defendant's brief, these exceptions raise the question whether, in an action such *420 as this on the question of damages suffered by the prosecutrix, the defendant should have been allowed to show payments actually made by the administrator, in order to determine how much, if anything, was actually available for distribution.
Under our statutes the probate court is given plenary and exclusive jurisdiction in the matter of settlement of estates.Abbott v. Abbott,
It follows that if the probate court had jurisdiction to make the final decree in question it is conclusive as to the administrator, and not subject to collateral attack by him, and if he were being sued here he would be bound by the terms thereof as to the amount to be distributed.
By the terms of the bond given to the probate court the administrator was obligated to render a true and just account of his administration within one year and at any other time when required by such court, and to perform all orders and decrees of the probate court by him to be performed in the premises. P.L. 2778. It is very apparent that the defendant as surety was not a necessary party to the administrator's accounting. In In reScott's Account,
The nature of the surety's liability on such a bond is aptly expressed in Judge of Probate v. Quimby,
Where a judgment or decree against the principal is necessary to fix the liability of a surety, or where the latter expressly, or by reasonable implication, agrees to abide such judgment or decree, it is conclusive against him though not a party thereto, in the absence of fraud or collusion. Ballantine Sons v. Fenn,
The defendant in its brief asserts that the decree was void because not in compliance with P.L. 2974, providing for an *422 assignment of the residue to the persons entitled thereto after payment of the debts, funeral charges and expenses of administration, or the reservation of sufficient effects for such purpose.
A court of probate does not proceed according to the common law, but has a special and limited jurisdiction given by the statute; and if it appears on the face of the proceedings that it has proceeded in a manner prohibited or not authorized by law, its orders and decrees are absolutely void, and may be treated as a nullity. Probate Court v. Indemnity Ins. Co. of N.A.,
"Generally speaking, when a court has jurisdiction of the parties and the subject-matter, its judgments and decrees, however erroneous, cannot be impeached in a collateral proceeding. But to effect this result, the court must have authority to render the particular judgment or decree that is assailed; or, in other words, orders or judgments which the court has not the power under any circumstances to make or render are void, and their nullity can be asserted in any collateral proceeding where they are relied on in support of a claim. * * * This lack of authority to make or render a particular order or judgment is akin to lack of jurisdiction of the subject-matter."
The opinion in Barber v. Chase, supra, then goes on to illustrate the difference between an erroneous exercise of authority and the assumption of power not authorized by law. As there said: "The probate court has jurisdiction to order the estate distributed to the heirs or legatees, and if, in so doing, some are omitted, this is a mistake of law or of fact, and while such decree may be erroneous, it is not a nullity."
The decree does not state that it is made after payment of the debts, funeral charges and expenses of administration. If we assume a case where due notice had been given to show cause why the account of the administrator should not be allowed, and why the *423
residue of the estate should not be distributed to the parties entitled thereto, but the decree of distribution says nothing about the payment of debts, funeral charges and expenses of administration, the situation is no different in legal effect from that in which one of the heirs is omitted. The decree may be erroneous, but it is not a nullity. If there were any unpaid creditors of the estate, whose claims had been allowed by commissioners, or if there were those who had not received payment for services and expenses in connection with the funeral, funeral expenses being debts against the estate, Baldwin v.Taplin,
We have considered all the points briefed and find no error.
*424Judgment affirmed.