Probate Court v. Vanduzer

The opinion of the court was delivered by Redfeild, J., This is a suit upon an administrator’s bond. A commission of insolvency issued, and the claim oí the prosecutor, Eli N. Johnson, ..was allowed at $130,59. This suit is brought for the recovery of that sum. The breaches assigned are, that Van Duzer, the administrator, did not render a true and just account of his administration, and that he has not faithfully administered, paid out, and distributed all the estate of the deceased; but, on the contrary, the debts due from the estate, and especially the prosecutor’s, remain unpaid. This is obviously no sufficient breach of the bond to enable the prosecutor tó maintain an action. After the issuing of a commission of insolvency, all [140] proceedings for the collection of debts, due from the estate, in all courts, except the probate court, are suspended, until commission is closed, and a final decree is obtained against the administrator for the payment of all the debts, or , „ , , ’ a dividend thereon, or until the account of the administrator is allowed by the probate court, and the debts, or a dividend thereon, passed to his credit, which is equivalent to a decree of distribution. Until such final decree of distribution, or upon the administrator’s account, or the administrator has been cited before the probate court to render his account, and has failed to appear, no action can be maintained upon the bond of an executor, or administrator, of an insolvent estate. The probate court have exclusive jurisdiction of of such account, and its adjustment cannot be drawn into another court. Dox v. Backenstose, 12 Wendell, 542. Newcomb v. Wing, 3 Pick. 168. Paine v. Stone, 10 Pick. 75. Paine v. Moffat, 11 Pick. 496. The same rule has been adopted in many of the other American states, in regard to estates represented insolvent. The liability in regard to solvent estates would, doubtless, be different. And the case of Warren v. Powers, 5 Conn. 373, is directly the reverse. That, too, seems to have been an estate settled by a commission of insolvency. Rut the point was not much considered, and we do not think the case rests upon the most convenient basis of proceedings. Had the defendants demurred, in this case, judgment must have been against the plaintiff, for the insufficiency of the declaration. But a defective declaration may be cured by the plea. Wood v. Scott, ante, 42. In the present case, the defendants, in their plea, admit that the administrator’s final account was passed before the probate court, and in that account he was allowed for the payment of the prosecutor’s full claim. This supplies the defect in the declaration, and is conclusive upon the defendant as to Van Duzer’s obligation to pay the full amount of the prosecutor’s claim, for that was the matter directly adjudicated by the probate court. Sparhawk, et al. v. Administrator of Buell, et al. 9 Vt. R. 41. But this adjudication will not avail the defendants for the purposes for which it is urged, that is, to show that Van Duzer has in fact paid the prosecutor’s claim, for the question was never directly decided by the probate court. It was immaterial [141] to the making up the account, whether the debt had been in fact paid or not, if Van Duzer was liable to pay it, it would be passed to his credit, and his bond stand as security for the fulfilment of that obligation. So that the probate court having allowed Van Duzer to credit himself, in his account, the full amount of the prosecutor’s claim, is conclusive upon him that he had assets for that purpose, and to that extent. The same point was decided in the case last cited. The plaintiff, in his replication, treats the defendants’ plea as being sufficient, unless avoided. This he attempts to do by alleging fraud in closing Van Duzer’s account before the probate court. If that were the fact, it could only be corrected by application to that court to re-examine the account. The adjudication of that court, upon a matter exclusively within its jurisdiction, could not be thus collaterally impeached. Paine v. Stone, 10 Pick. 75. To this replication there is a demurrer. The case presents rather an anomalous state of pleadings. The declaration is insufficient; that defect is cured by the plea; the plea is bad for all other purposes, and the replication is of a matter which cannot be tried in this suit, and is j bad. But, upon the whole pleadings we are enabled to come 1 at the justice of the case. The judgment of the county court is reversed, and judgment that the replication is sufficient, and that the plaintiff recover his damages and costs. See Day v. Essex County Bank, ante, 97.