Sherman v. Abell

The opinion of the court was delivered by Royce, J, The orator prays for an injunction against the defendant Abell as administrator with the will annexed of Tilly Gilbert, and defendant Fish as administrator of Hannah B. Howe, restraining them from the enforcement and collection of the bond which was allowed against the estate of Hannah B. Howe, out of said estate. Some of the grounds upon which the orator predicates his right, were considered and decided in the case of Abell, admr. of Tilly Gilbert v. Howe et als. 43 Vt. 403. It was then claimed, as it is now, that the bequest in the will of Tilly Gilbert to James Jarvis Gilbert, was a trust fund in the hands of the executors and administrators of Tilly Gilbert, and that they held said funds as trustees ; that they constituted no part of the estate of Tilly Gilbert, and consequently that they should prosecute or defend in matters connected with said funds in their character of trustees, and not as executors or administrators. The court held that it was the right and duty of the administrator, to gather up the fragments that remain of said estate, and bring them into the probate court, and place them in order and due course of administration, according to the will, ,so that the right and duty of the administrator, as such, to control and administer this fund, was there conclusively settled. The objection that the suit was prematurely brought, for the reason that it did not appear that Howe had been ordered by the probate court to pay over the funds in his hands to his successor, was virtually overruled, by the court’s retaining jurisdiction of the suit, and allowing it to proceed to a final decree. So that the orator’s right to equitable relief, must stand upon the facts stated in the bill and answers, and appearing from the proofs. Upon the settlement of John Howe with the probate court, it was ascertained that he had in his hands, belonging to the estate of Tilly Gilbert, the sum of $2,996.30. It stands admitted that John Howe was at that time wholly insolvent, and a non-resident of the [559] state — so that the only remedy left to the administrator for the recovery of the amount due from John Howe, was against the surety (Hannah B. Howe) upon the bond given by him to the probate court. If the default of John Howe had been ascertained in the lifetime of Hannah B. Howe, the bond might have been prosecuted against her in the name of the probate court, for the benefit of the estate of Tilly Gilbert. Upon her decease the bond stood as a claim against her estate. Under our statute, it was the exclusive duty and office of the probate court to determine and adjudicate the question of its allowance or disallowance, and the final judgment rendered in such proceeding is conclusive. A court of equity will not interfere to control the probate court, or those acting under its authority, while in the discharge of their proper and appropriate functions. When claims mre fairly allowed against an estate, it becomes the duty of the administrator to pay them as far as he has assets ; and so far from a court of equity interfering to prevent or hinder him in the discharge of this duty, he may invoke its aid when necessary, to assist him. The bank stock, that the orator seeks to exempt from liability to pay the above claim, he derived title to from the heirs of Hannah B. Howe. Our statute makes the personal estate first chargeable with the payment of debts and expenses of administration. Gen. Sts. ch. 52, § 5. The right of the heirs to the personal estate, was subordinate to the rights of creditors, and they had nothing in such estate to convey, except what might remain after the payment of the debts against the estate and the expenses of administration. The orator has shown no equity that entitles him to an injunction restraining the administrator from administering upon so much of the personal estate of Hannah B. Howe as may be necessary for the payment of the claims allowed against her estate, and the expenses of administration. The orator further claims, that if said claim is to be paid out of the estate of Hannah B. Howe, that the defendants, who have acquired title to a portion of the real estate belonging to said estate, from the heirs-at-law, should contribute' to such payment. The payment of debts^and expenses of administration, rested primarily upon the personal estate, and until that was exhausted, no resort [560] could be made to the realty. These defendants are entitled to the full benefit of this principle. In making their purchases, they had the right to understand that the estate they were purchasing, could only be made chargeable in the event that the personal estate should be insufficient to respond to the legal claims against the estate. On the other hand, the purchaser of the personal estate is chargeable with the knowledge which the law presumes, that his title was subject to be defeated if such estate should be required for the payment of claims that had been, or might be, allowed against said estate, and the expenses of administration. So there are no such facts appearing as would justify a decree for contribution. The pro forma decree for the orator against Abell and Fish, is reversed, and cause remanded, with mandate, that the bill as to them, be dismissed with costs. The order of said court overruling the demurrer of the defendants Barrows, Benedict, and Griswold, is reversed, and mandate that the demurrer is allowed, and bill as to them to be dismissed with costs. The defendants James A. and Caroline H. Paige, not having filed any answer to the bill, the orator was entitled to have the bill taken as confessed against them. As no such record seems to have been made before the cause passed to this court, the bill will be taken as confessed against them, and decree to be entered for orator against them accordingly.