Church's v. Church's Estate

Watson, J. This case is here on demurrer to' the appellee’s plea in bar. It appears from the plea that Serena K. Church died testate in the State of New Hampshire, that her last will and testament was there probated and W. P. Burton, the appellant, appointed executor thereof, and that letters testamentary on her estate have never been granted to the appellant in this State. There is nothing in the plea showing where Whitcomb H. Church resided at the time of Serena’s death nor at the time of his own death. The plea is deficient in this [363] respect. For if he resided in the State of New Hampshire at the time of her death and continued to reside there until his own death, the situs of the debt in question was there also, and it could be no basis for the administration of her estate here. V. S. 2326-2327; Abbott v. Coburn, 28 Vt. 663; Walton v. Hall’s Estate, 66 Vt. 455; In Re Joslyn’s Estate, 76 Vt. 88. If no part of her estate had its situs in this State, no administration can be- had here, and her foreign executor can prosecute the suit against the estate of Whitcomb H. Church for the collection of the debt in question. This question in principle is fully discussed in Purple v. Whithed, 49 Vt. 187, and we see no reason for disagreeing with the conclusion there reached. But on the other hand, if at the time of Serena’s death Whitcomb H. resided in this State the debt from him to her had its situs here, and it was a part of her estate to be administered here. In that event the foreign executor would have no standing to prosecute the claim against Whitcomb H.’s estate in this jurisdiction. This clearly appears from the authorities before cited. It is contended by the appellant that the question here involved cannot properly be raised by a plea in bar, — that it must be by a plea in abatement. But whether this is so or not we do not decide. Judgment reversed, demurrer sustained, plea adjudged insufficient, and cause remanded.