Davis v. Flint's Estate

MUNSON, J. In 1868, the decedent, Mary Flint, received letters testamentary on the estate of her husband, Brainerd Flint, and thereupon brought a suit as executrix upon a promissory note which was payable to the deceased, and is found to have been his properly. The suit was continued the first term and settled in the succeeding vacation, the executrix receiving the full amount of the note. She returned an inventory of the estate soon after receiving her appointment, and rendered a final account of her administration in June, 1869. She made no return of the note in the [487] inventory, and did not account for its avails in her settlement. The heirs of Brainerd Flint had no knowledge of this note or suit until after Mary Flint’s death, which occurred in 1892. No further account of Mary Flint’s administration has been rendered. The plaintiff, as administrator de ■bonis non of Brainerd Flint, presented a claim for the sum so withheld to the commissioners on Mary Flint’s estate; and this is an appeal from the disallowance of his claim by ■the commissioners. It was held in Davis v. Eastman, 66 Vt. 651, that Mrs. Flint’s executor could not be made to account in equity for money belonging to Brainerd Flint’s estate, for the reason that it was still within the power of the probate court to complete the settlement of that estate. We think it must also be held that the amount for which Mrs. Flint was accountable cannot be determined by the commissioners on her estate. It has been uniformly held in this state that persons who are •charged with the administration of funds by appointment of the probate court, cannot be sued for a non-payment of the funds until their liability has been determined by.a decree of that court. Short v. Moore, 10 Vt. 446; Probate Court v. Vanduzer, 13 Vt. 135; Curtis v. Curtis, 13 Vt. 517 ; Adams v. Adams, 16 Vt. 228; Bank of Orange County v. Kidder, 20 Vt. 519 ; Probate Court v. Slason, 23 Vt. 306 ; Merriam v. Hemmenway, 26 Vt. 565 ; Probate Court v. Chapin, 31 Vt. 373 ; Probate Court v. Kimball, 42 Vt. 320; Probate Court v. Kent, 49 Vt. 380; Foss v. Sowles, 62 Vt. 221. In Adams v. Adams, an heir to an unsettled estate presented to the commissioners on the estate of the deceased administrator thereof a claim for his distributive share. The court said it was for the probate Court to determine whether the plaintiff was an heir, whether there was . any estate for distribution, and if so the amount of the plaintiff’s share; and held that until these matters were ascertained by the probate court the heir could have no [488] claim against the administrator personally, and that consequently an action could not be sustained against his representatives. It is apparent from these decisions that the accountability of the deceased executrix must be determined by the probate court before any other action can be taken. As we hold that there can be no recovery in this proceeding upon the facts found,' we do not consider the exceptions taken to the evidence received. Nor do we pass upon the question whether the proceeding could be sustained by an administrator de bonis non if otherwise properly brought. Judgment reversed and judgment for defendant; to be certified.