Probate Court v. Sawyer

The opinion of the court was delivered by Ross, J. I. If it was necessary to endorse the names of the husbands of Mrs. Clayton and Mrs. Smith with their names as prosecutors upon the writ — in regard to which no decision is made — the defect arising therefrom could be taken advantage of only by plea in abatement. 1 Chitty Pl. 33; Probate Court v. Strong, 24 Vt. 146. A motion to dismiss would not reach the defect, if any, as it does not appear from the record. The husbands wore required to join, if at all, because of the marital relation. , The wives, being the heirs to the estate, to whom their shares of the estate under our statute descended as their sole and separate property, were the real prosecutors. As the pleadings stood, the wives had the right to stand prosecutors without their husbands joining them. Hence, the defendants were not legally injured by allowing the husbands’ names to be endorsed with those of their wives as prosecutors upon the writ. [60] There was no foundation in fact for the motion to dismiss because the name of the person to whom leave was granted to prosecute was not endorsed upon the back of the writ. The leave was granted to Mr. McEarland as the attorney of the heirs. This was granting leave to the heirs, the widow and two daughters, and not to the attorney as an individual. . The attorney is the hand of his principal. He speaks and acts iii the principal’s name and stead. Hence no leave was granted to Mr. McEarland as an individual to prosecute the bond. The leave was to those whom he represented, the heirs of Jonas Moore’s estate. There was no error in the action of the County Court in overruling the motions to dismiss. II. The demurrer admits the facts set forth in the defendant’s plea. Among these are the facts that no person injured by the breach of the bond ever applied to the Probate Court for leave to prosecute the bond, and that the Probate Court never granted such leave to any person injured, or claiming to be injured, by the breach of the bond. With these facts admitted, it follows that the prosecution is either by the Probate Court of its own motion, or at the instance of a person who had no right to prosecute the bond, neither of which would be lawful. Probate Court v. Brainard, 48 Vt. 620; Probate Court v. Hull, 58 Vt. 306. The County Court was therefore in error in adjudging the defendant’s plea insufficient on demurrer. It does not make the plea insufficient that the facts thus admitted by other papers in the case were shown to be false. To have shown their falsity, the plaintiff should have traversed the plea. For this error, the judgment of the County Court is reversed and the cause remanded, with leave to the plaintiff to withdraw his demurrer, and to reply to defendant’s plea, and for the case to be proceeded with.