Hicks v. Clark

41 Vt. 183

• Court: Supreme Court of Vermont
• Decided: August 15, 1868
• Status: Published

Opinion

The opinion of the court was delivered by

Barrett, J.

We regard the provisions of our General Statutes, regulating and limiting the prosecution of claims against the estates of deceased persons, as having exclusive reference to the prosecution of claims in the probate courts of our own state, and that they are entirely unaffected, in their application and effect, by the fact that portions of such estates may be proceeded with in other states, and therein such claims might, by claimants residing in this state, be prosecuted successfully in the proceedings in other states. The rights of parties living in the state, to present and pursue their claims to allowance and satisfaction in our probate court, are the same as if the sole administration of the estate was in this state. In the present case the claimant presented his claim within, and conformably to, the provisions of our statute regulating the subject, and of course he is not precluded by the limitations of the statute.

The point made, that this claim was merged in the bond given by Locke, seems to us not well founded.

Upon a familiar maxim and principle of construction, it seems that the terms of the bond exclude the idea of its operating to merge the original claim, for it says, “ Such payment of $300, or the pro rata share thereof, as aforesaid, shall be a release and discharge,” etc. The payment, and not the giving of the bond, was to be the release and discharge of the claim; the “payment shall .be” (in the future), not the giving of the bond now is (in the present), a release and discharge. Inclusio unius exclusio alterius.

The judgment is affirmed.