Brown v. Estate of Sumner

31 Vt. 671

Opinion

Bennett, J.

The note executed by Mrs. Sumner, while a feme covert, was absolutely void at law.

Whether it could be enforced under the circumstances of this case against her separate estate in a court of equity, it is not necessary to decide in this case.

We are all agreed that even if that point be conceded it is not a claim, the allowance of which can be enforced before the commissioners on her estate, and that the only appropriate remedy for the plaintiff, even in that event, must be in a court of equity.

If the plaintiff has a claim, it is purely of an equitable, character, and one which can only be recognized in a court of equity, and we apprehend that a board of commissioners have no powers to adjust and allow a claim which can only be recognized in a court of equity. ’*

The court of probate is a court of special and limited jurisdiction, deriving all its authority from the statute, 2 Vt. 329, and it can only have such powers, whether equitable or legal, as the statute confers upon it.

I am not aware of any provision of the statute which gives to that court, or to a board of commissioners, chancery power? to take cognizance of claims which are solely based upon principles recognized only by a court of equity.

It has been frequently held in this State, as it was in the case of Sparhawk v. Duel, 9 Vt. 74, that an equitable claim is not barred by not being presented to commissioners, and I think those decisions stand upon the ground that the party could have no remedy before the commissioners. If they had a remedy before that board, it should be compulsory upon them to assert it. Both policy and principle would require it.

Judgment affirmed.