Dodge v. Page

The opinion of the court was delivered by Barrett, J. There is no question of plaintiff’s right as heir of Jared Dodge, and his right to recover by virtue of his title as such heir was established in this case as reported 49 Vt. 137. That right is effectual to entitle him to recover upon the case as now-before us on the bill of exceptions, unless countervailed by the appointment of defendant as administrator of Jared Dodge. The history of the case leaves it not subject to doubt, that the purpose for which such appointment was procured was, to defeat the plaintiff in this suit. It was procured virtually upon his own motion. The widow had no interest, having conveyed her interest to defendant since the former trial of the case. No person in interest is shown to have moved for an administrator; nor is it shown that any interest but the defendant’s was to be served by such administration, and that interest was limited to the defeating of the plaintiff in this suit. The appointment of appraisers and commissioners, and what is reported of their action, are part of the discreditable programme — it not appearing that a debt is in existence against the estate ; and if there was, the lapse of seventeen and a half years without moving for proof and payment, as provided by the statute, has, presumably,' put an effectual quietus on it. At any rate, in order to render this show effectual for the [43] purpose designed by it, it behooved the defendant to have proved that in fact debts were existing for which the real estate of Jared was chargeable. The principles, and just force and effect of Roberts v. Morgan, 30 Vt. 319, and the cases cited, are decisive against this ground of defence in the present case. The judgment is affirmed — the clerk to make the computation and enter the amount of damages.