Hurlburt Bros. v. Hinde

Watson, J. The appeal, though by the trustee only, brought the whole case into the county court; and, when entered therein, the judgment against the' principal defendant, as well as against the trustee, was vacated. P. S. 1654; Dow v. Batchelder, 45 Vt. 60. After the case was thus in the county court, but before anything was there done as to the trustee, and before judgment against the principal defendant was affirmed, the trustee died, and soon thereafter — on July 9, 1903 — commissioners were appointed on his estate. The executrix of the last will and ■ testament of the deceased trustee being cited to appear in the case in accordance with the provisions of P. S. 1732, filed her disclosure in Janu [521] ary, 1905, alleging that she had not at the time of the service of the citation upon her, nor had the estate of the deceased trustee, any goods, chattels, rights, or credits belonging to the defendant. The disclosure was as broad as the command therefor contained in the citation by which she was made a party to the suit. This being so, it cannot in justice be said, as is urged by the plaintiff, that judgment should have been rendered against h.er because the period covered by the disclosure did not reach back to the time of the service of the writ upon the trustee. Moreover, a disclosure could be only evidence before the commissioner appointed in the case to hear the issue as to the liability of the trustee, and the scope of the hearing had and the facts reported sufficiently cover the whole period without reference to the disclosure. Hence the legal rights of the parties, so far as they depend here upon the facts, must be determined solely upon the report. Lovejoy v. Lee, 35 Vt. 430. The jurisdiction of the probate court over matters touching the settlement of estates is exclusive and complete. Neither common law nor equity courts interfere therein, except in some instances, not here material, in.aid of the probate court. Probate Court v. Kent, 49 Vt. 380. And all estates, without representation of insolvency, are now settled as insolvent estates. All claims of an absolute or legal nature against a person at his death, must be presented before the commissioners on his estate for allowance, within the time limited by statute. P. S. 2820, 2821. A person having a claim of such character, but not so presenting it, shall be barred from recovering the demand, or from pleading the same in set-off in any action. P. S. 2824; Goff v. Robinson, 60 Vt. 633, 15 Atl. 339; Freeman v. Holt, 51 Vt. 538. The mortgage debt owing to the principal defendant from the trustee at the time of the service of the writ upon him was both legal and absolute, and consequently, by the failure to present it before the commissioners on the deceased trustee’s estate, it became barred and not a claim on which any distributive share of the assets of the estate was due or could be ordered paid. It follows that the executrix has not in her hands any sum for which she or the estate is liable to the principal defendant, and the judgment in favor of the trustee must be affirmed. [522] The statute (P. S. 1732) under which the executrix was cited in, provides that if the person summoned as trustee in his own right dies before judgment in the original suit, his executor or administrator may appear voluntarily, or may be cited to appear, and the proceedings shall then be conducted as if the executor or administrator, in that capacity, had been originally summoned as trustee, with an exception not applicable here. Had the executrix, in that capacity, been originally summoned as trustee, she could have been chargeable in this action for only such sum as should by the probate court be ordered paid on the debt as proved before the commissioners on the estate. The owner of the claim could not in law be entitled to more than this from the assets of the estate, and an attaching creditor' by trustee process can stand no better. Under this construction of the statute, it is necessary for the court in which the trustee suit is pending to continue the case from time to time as to the trustee, until the debt attached has been proved in the usual course of proceedings in the settlement of estates and an order has been made for the payment of claims and the distribution of assets among the creditors, to enable the executor or administrator to file his disclosure. There is a similar statute in New Hampshire, and the highest court of that state has given it the same construction. Chapman v. Gale, 32 N. H. 141; Rollins v. Robinson, 35 N. H. 281. See also Guptill v. Ayer, 149 Mass. 49, 20 N. E. 449. Judgment affirmed.