Probate Court v. Gale, 47 Vt. 473

Probate Court v. Gale

47 Vt. 473 | Vt. | 1874

The opinion of the court was delivered by

Wheeler, J.

The condition of the bond declared on was that the defendant Jane E. Gale should pay and discharge all debts and charges chargeable on the estate of John E. Gale of which she was administratrix. The breach assigned is that a claim of twenty-eight dollars and eighty-six cents was allowed by the commissioners of claims, to the prosecutor, which she has not paid. The report of the referee shows that this claim was allowed, and that since the allowance, it has not been paid except to the extent of ten dollars by the use of the horse as stated in the report. The report shows, however, that at the time of the allowance of the plaintiff’s claim, there was a valid claim of twenty-four dollars eighty-four cents in favor of the estate against the plaintiff, and that he had a further valid claim of twelve dollars seventy-seven cehts against the estate. The defendants now insist that the claim in favor of the estate was so allowed by the commissioners that it was in fact a part of their judgment, and that it should now be treated as an offset in favor of the estate allowed by them. The report shows that the referee found that claim “ to have been allowed by the commissioners upon said estate, as appears by their indorsement thereon.” Their indorsement thereon is, “ allowed the within bill thirty-five dollars and eighty-four cents this day, May 27, 1871,” which is signed by the commissioners. The report further shows that the warrant to the commissioners issued from the probate court, November 27,1869, and was returned with their report, July 7, 1870. This allowance, therefore, was made several months after all power of the commissioners to act upon the claim had come to an end, and it was wholly nugatory as a judgment. This claim appears to have been before the commissioners while they had power over it, and while they had the prosecutor’s claim before them; but it was not acted upon by them, and the parties appear to have agreed that it should not be. The administratrix defendant appears to have preferred to let it stand, to be adjusted in some other way *477between her and the prosecutor, rather than to have it passed upon by the commissioners, and for that reason, it was not really presented for allowance, or if presented, was withdrawn by her. The statute, ch. 53, §9, Gen. Sts., made it her duty to present this claim in offset, unless she thought it necessary to commence an action upon it by attachment or otherwise, as provided in § 17 of the same chapter. She is not now seeking to enforce it by such an action, and there is nothing in the case to show that she has ever thought such an action necessary in order to enforce it. She is seeking in this action to have it adjusted as an offset to the prosecutor’s claim, just as she might then have had it adjusted if she had chosen to have done so. The plaintiff’s other claim could have been adjusted also in that proceeding, but not having been presented for adjustment, is barred. Ewing v. Griswold, 43 Vt. 400. It seems to have been the intention of the statutes upon this subject, to require all claims between estates and claimants, with the exception mentioned, to be adjusted by the commissioners, and as this is not within the exception, the claims not presented to and acted on by the commissioners, are, by the omission, barred from being claims that were enforceable for or against the estate afterwards. The administratrix and prosecutor appear to have had an understanding that these other claims should be adjusted between them in some way. If this understanding kept the claims alive so that they could be made subjects of legal remedy in any way between the administratrix and prosecutor, it would be between them as persons, and not in these capacities. The litigation between the prosecutor and the estate the administratrix represented, was ended when the claim presented to the commissioners for adjustment had been adjusted by them and their allowance had been returned to the probate court and there accepted. This proceeding is brought to enforce that allowance, and so far as the claims are concerned, the allowance as accepted is alone to be looked to. Whether these persons have any remedy between themselves on account of the understanding between them, is a question about which no opinion is now expressed or intimation given.

Judgment affirmed.