Probate Court for the District of Chittenden v. Saxton

The opinion of the court was delivered by Hebard, J. The first breach assigned is, that the administratrix did not make a true inventory of the estate. This is directly met by the plea. The second breach is, that she did not render an account of her administration on the 30th day of August, 1830, nor at any time before, or afterwards. The plea alleges, that she did well and truly administer the estate, until discharged, and did ren [625] der her account, which was accepted by the probate court. The third breach is, that she did not pay the debts, though the time for so doing had elapsed. The answer to this is, that the plaintiff does not allege, that the probate court has made any decree for the payment of the debts. The remark is so common, that it is hardly necessary to repeat it, that a bad plea is good enough for a bad declaration ; and, as the plea is demurred to, we must look back and see whether the plaintiff has set up enough to entitle him to recover. It is alleged that there was a large amount of property, that belonged to the estate, and more than enough to pay all debts allowed by the commissioners, and all charges and expenses of administering on the same. But neither the amount of the property nor the amount of the debts is set forth. If the creditor claims to have his whole debt paid, he must, at least, set out so much in his declaration, as will show that the administrator is liable to pay the whole. If he had stated, that there was sufficient to pay the debts, after paying the expense of administration, family expenses, and assignment to the widow and for support of children, it would have presented a different question; and nothing short of this would present a state of facts, from which this court could decide upon the administrator’s liability. If the estate is in fact solvent, then there is no doubt that there must be a decree of distribution and payment. As this declaration stands, there is no such averment of facts, as show to this court that the administratrix had sufficient assets to pay all the debts ; and there is no allegation of any decree for the payment of the whole, or a part. The judgment of the county court is reversed, and judgment rendered for the defendant, that the plea in bar is sufficient.