Atherton v. Fullam

The opinion of the court was delivered by Rowell, J. Was the claim in suit presented to the defendant, executor as aforesaid, “ within one year after it accrued ” ? R. L. s. 2208. That is the question. In support of the demurrer it is contended that the judgment of the County Court might have been carried into effect by an execution issuing out of that court, and that, therefore, the claim became absolute upon the rendition of that judgment, and that the certificate to the Probate Court was nugatory. On the contrary it is contended that the claim did not become absolute till December 5, 1881, when the Probate Court made an order and decree in accordance with the judgment of the County Court. The statute provides that the final decision and judgment of the Conuty Court or the Supreme Court in probate appeals, “ shall be certified to the Probate Court ” ; and that “ the same proceedings shall be had in the Probate Court as though such decision had been made in such court.” R. L. s. 2283. We think this statute is imperative. To send down a certificate has always been the practice, as far as the members of the court know or have ever understood ; and we think it the general understanding of the Profession that it must be done. Probate appeals are very analogous to chancery appeals, in which the statute provides that when the appeal has been heard and determined, the proceedings, with the judgment, de [390] cree, or order of the Supreme Court, and all things concerning the same, shall be remanded to the Court of Chancery, where such proceedings shall be had as may be necessary to carry such judgment, etc., into effect. R. L. s. 775. The certificate is required in probate appeals, that the Probate Court, where the estate is in process of settlement, may have authentic information of the decision above, to the end that it may conform its subsequent action in the premises thereto. Green v. Clark, 24 Vt. 136. And when such subsequent final action is there taken, and not till then, the matter is finally disposed of in. that court. So in this case. Matthewson was in no legal default until he neglected and refused to comply with the order and decree of the Probate Court of December 5, 1881. His liability did not become finally fixed until then, nor the claim upon the bond ■ absolute. Affirmed and remanded.