57 Vt. 282 | Vt. | 1884
The opinion of the court was delivered by
The question is, whether the defendants are liable on the administrator’s bond, given in the administration of the estate of Benj. Hall, deceased, for an amount due Jeremiah Hall as his portion of the money derived from the sale of the homestead right of his mother in the estate of his father.
In the decree of distribution of the estate of Benj. Hall, a distribution of the homestead money was ordered, and such distribution was doubtless acquiesced in by the parties thereto as a matter of convenience; but it appears that administration of the widow’s estate had never been taken out; and that though such homestead money was in the hands of Winch, the administrator, it was there simply as a trust for the legal owners and not as a fund subject to the orders of the Probate Court. That court, in administering upon the estate of Benj. Hall, never having acquired jurisdiction over the estate of the widow of Benj. Hall beyond ordering that part of it which consisted of her homestead right and her right to at least one third of the residue of the personal estate of her deceased husband to be set out, — R. L. s. 2108, — erred in ordering a distribution of her estate; and so much of its decree as relates to such distribution is void. And any right of action against this adminstrator for an amount due to an heir of the widow of Benj. Hall must be pursued in some other way than upon his administration bond.
The Probate Court does not proceed according to the course of the common law; but has a special and limited
As to the item of interest: It appears that at the date of the decree of distribution, a part of the assets in the administrator’s hands consisted of unmatured interest notes given by Jeremiah Hall to the administrator in payment for the farm of his father, which he and other heirs bought in. The administrator thus receiving interest on these notes should be charged with the same on settlement.
The report shows that, upon this basis of interest and regarding the decree as void only as to the homestead money, the administrator has paid the plaintiff all that is due him under said decree except $3.30. But the defendant claims that the decree not only ordered a distribution of the homestead money, but also the widow’s thirds of the personal estate which she derived from her deceased husband, and that this clearly appears from the probate records which were before the referee. If this is true the decree was void in this respect the same as in respect to the homestead money. In Johnson v. Johnson, 41 Vt. 467, it was decided that the portion of the personal estate of an intestate husband to be distributed under our statute to the. widow, vests in her immediately upon his decease; and in case of the decease of the widow before assignment by the Probate Court the same passes to her legal representative.
The claim is, that the plaintiff has been overpaid tinder the decree more than said $3.30, by reason of the error in it last referred to. Whether this is true or not does not fully appear from the report, the records of the Probate Court being only in part before us. We think the case shows the point was made before the referee and County Court;
Judgment reversed and cause remanded.