53 Vt. 111 | Vt. | 1880
The application to renew the commission for the presentation of claims, was made more than six months after the time previously limited, but before the commissioners made their report to the Probate Court.
The statute, No. 89, Acts of 1867, which is the Act now in force, — provides as follows : “ On application of a creditor who has failed to present his claim, if made within six months after the expiration of the time previously limited . . . and such application shall be made before the final settlement of the estate, the court may, for good cause shown . . . renew the commission,” &c.
It seems plain to us that such application, where no question of notice to the creditor is involved, must be made within the six months named. Such is the unmistakable language of the statute. , Estates may be, and often are, settled within six months after the time limited for the presentation of claims. In such case there would be less than six months twithin which an application for renewal of the commission could be made. According to the petitioner’s construction of the statute, such application can be made at any time, before the final settlement. Such construction would render the words of the statute, “ if made within six months after the expiration of the time previously limited,” of no use or force whatever.
The petitioner insists that the question here made, could be raised only by a written motion to dismiss, or plea in abatement; and that by omitting to file such motion or plea, the right to make the question was waived.
The case is an appeal from the order of the Probate Court, denying the petition to open the commission, &c.; and in the County Court the parties filed an agreed statement of facts, including by reference, the probate records, but which reserved no question of pleading. It then became the duty of the County Court to render a proper judgment upon those facts, which it did by affirming the judgment of the Probate Court. The agreed statement as made obviated all necessity for a plea.
The judgment of the County Court is affirmed, and the same to be certified to the Probate Court.
