27 Vt. 396 | Vt. | 1855
The opinion of the court was delivered by
The claim which is sought to be recovered in this case, is mostly to recover back money paid to the deceased in his life time, as usury. Fifty-nine dollars and twenty-two cents was disallowed by the county court, upon the ground that it was not paid as usury, and to this the- plaintiff did not except. The other part of the claim was resisted before the county court upon the ground that it was not presented to the commissioners, and that such portion of it as was made to recover back money paid as usury did not survive against the estate of Mr. Burton. But we think otherwise. The assets of the estate had- been benefited by
In the case of Moore, Assignee of Jones v. Jones et al., in the district court of the United States, 23 Vt. 739, it was held, that a right to recover back money, paid as usury, was a right vested in property, and that it passed to and vested in the assignee of the bankrupt, under the recent bankrupt law of the United States, and this case proceeded upon the ground, that the right of action in such case, sounded in contract, and not in tort. It is clear then, if in such a case, the right is one vested in property, it should survive to an administrator or executor, and by parity of reasoning, it should survive against them.
Whether the plaintiff’s claims are barred by not being presented to the commissioners is quite another question, but from the case before us we cannot at all events say they are barred. All that the case finds is, that the only claim presented was for $59.22, (which the county court disallowed,) and the naked fact that the executor of Burton objected to the allowance of the other claims, because they were not presented before the commissioners. The case must state enough to show affirmatively that there was error in the county court. To bar a claim under our statute proceeding for the settlement of estates, it must appear, among other things, that the commissioners did appoint convenient times and places of meeting to examine and allow claims, and that due notice was given of this by the commissioners, as the statute prescribes. See Comp. Laws, chap. 52, sec. 3 and 15, pp. 350, 352. Unless this is done there can be no bar of the right under the 15 th section of the act, and the burden of the proof is upon the person who claims the benefit of the bar.
The exceptions must show facts enough to bar the claims, and in this respect it makes no difference whether the defense comes in under the general issue, or by way of a special plea.
The judgment of the county court is affirmed.