43 Vt. 645 | Vt. | 1871
The opinion of the court was delivered by
Each count in the plaintiff’s declaration sets forth an agreement by Chester Baxter with the University of Vermont upon consideration, and with a breach sufficient to constitute a good cause of action in favor of that institution against him. The pleas, put in issue by the demurrer, do not deny the consideration ; if they did, they would be bad upon this special demurrer, for that would amount to the general issue. Neither do they set forth what would have been a good defense to the several causes of action for Baxter himself, nor is it claimed by the defendant'that they do. But the defendant claims that the pleas show that there is no estate that should go to satisfy these causes of action, and that this is a good answer to them for him as executor. The plaintiff contests this claim, and here has been the principal controversy at this hearing. At common law executors were answerable absolutely, upon all causes of action that survived, to the same extent that the testator was, so far as they had assets; and were liable to judgment to be satisfied of assets they might afterwards have, if they had not sufficient at the time of the judgment. In this state no action, according to the course of the common law, is allowed against executors or administrators except ejectment, to recover some real estate, or replevin to recover some specific personal property. General Statutes, 401, § 15. Boyden v. Ward, Administrator, 38 Vt., 628. No other action can be prosecuted otherwise than by being presented to commissioners. The commissioners are appointed to receive, examine and adjust claims against the deceased. Gen. Stats., 400, § 1. They have jurisdiction of all actions that survive by the common law, and several others in addition. Gen. Stats., 391, §§ 10, 11, 12. But their jurisdiction extends only to the determination of .the validity of the claims. They have nothing whatever to do with the assets. Some of the property of the
Upon motion of the plaintiff, and the suggestion that this defect can be supplied by amendment, the pro forma judgment of the county court should be reversed, pro forma, with leave for the plaintiff to amend, upon the usual terms as to costs.
Judgment reversed, pro forma, and cause remanded.