Noyes v. Phillips

The opinion of the court was delivered by Powers, J. "We think counsel have on both sides labored under a misapprehension respecting the scope of the statute under which the proceedings in this case were had. It has been argued upon the theory that Mr. Crane was an arbitrator, and the trial before him an arbitration limited by the terms of the submission agreed upon by the parties. The declaration, which is before us for consideration upon demurrer, sets forth that the trial before Mr. Crane was had pursuant to sec. 2148, R..L., which reads: “When there is a disputed claim between an executor or administrator in behalf of the estate he represents, and another person, it may, with the consent of the parties in writing, be referred, under.an order of the Probate Court,” &c. The referee’s authority comes from the court, and the court’s authority to refer is given by the statute, provided the pax-ties consent in writing. The consent in writing called for ixx the statute does not contemplate a formal submissioxx to an arbitrator; and noxie is required as in ax-bitratioxi proper. It is not requisite that the parties mutually choose the referee; he is the appointee of the court. All the agexxcy of the parties demanded is, that they consent ixx writirxg to this mode of trial. In this view of the statute, it is apparent that many of the questions discussed ixx ax-gument, touching the scope of the subxxiissioxx axid award, are unimportant. The sxxbmission in this case shows the consent ixx writing [231] of the parties that the court .might refer the disputed claim to Mr. Thompson, or, in an alternative, to Mr. Crane. The court issued the rule to Mr. Crane; and as the mode of trial and not the selection of the referee is the only matter dependent upon the consent of the parties, the court might appoint whom it pleased. The statute does not restrict the court to any particular class of claims in making a reference; — “ a disputed claim ” is the wording of the statute. It is apparent that a great variety of claims for and against estates may come into dispute; and the obvious purpose of the statute is, to provide a cheap and speedy mode of trial for their determination. A claim, disallowed by commissioners, and appealed by the claimant, if the appeal has not been entered in the County Court, is within reach of this reference. The declaration in this case avers that the “ disputed claim ” related “to the purchase, conveyance, and possession of a certain parcel of real estate.” This language is broad enough to warrant an award for the purchase money of such real estate. It is not apparent why such a dispute could not as safely and properly be determined by a reference as any other matter. The intestate, if living, and the defendant could have agreed to such a trial without question; and, as in this case, the Probate Court is to determine whether the reference shall be made, no harm to the estate or persons interested in it is probable. The statute requires the referee to return his award to the Probate Court; and when accepted by that court, it is to be final between the parties. On the return of the award to that court any objections to its acceptance are to be made to the court; and the court may make any order in the premises necessary to protect the parties, as was held in Lathrop v. Hitchcock, 38 Vt. 497; but its order accepting the award or report, once made and unappealed from, is a final, decree or judgment upon the dis [232] puted claim in question, and is the basis of an action of debt on a judgment. It was held in Adams v. Campbell, 4 Vt. 447, that the omission of the debet or detinet in the declaration in cases like this, was fatal on demurrer. For this cause this declaration is defective. The judgment of the County Court was correct; but on motion the same is pro forma reversed, and the case remanded, with leave to amend on the usual terms.