Probate Court v. Niles

32 Vt. 775

Opinion

Aldis, J.

I. The provision in the statute (chap. 59, sec. 2,) that the applicant shall file in the county court, at the time of the return of the writ, a copy of the bond and the certificate furnished by the probate court, is intended as a means of preserving in the county court the proof of a compliance with the preliminary requisites for the instituting of the suit. From the nature of the act required to be done, it is not vital to the suit that the time should be precisely complied with. The rights of the parties in no way depend upon the lime of filing the bond and certificate, and this part of this provision must be considered as merely directory.

Executors and administrators are required by statute, before entering upon their trust, and before letters testamentary or of administration are issued to them, to give bonds; yet their acts done before giving bonds are held valid, and the statute is regarded as being merely directory; Heirs of Clark v. Tabor, 22 Vt. 595.

The right to institute the suit arises when the probate court grants the permission, not when the proof of it is filed in court. Hence, leave to file the certificate, if out of time, was permissible in the discretion of the county court, and their discretion on the point was final.

The statute requires that copies of appeal from a justice of the peace should be certified by the justice. In a case decided at the last term at Rutland,

Footnotes

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* it was held that where the copies were not signed or certified by the justice, and a motion to dismiss was interposed, the court could coutinuo the case to the next term for the purpose of enabliug the party to perfect his copies, and the copies being perfected at the next term, that they properly overruled the motion.

II. The choses in action of the wife, while they remain in action, and have not been reduced to possession by the husband, are not the property of the husband. The share of the wife in her father’s estate, while in the hands of the administrator, was her property, and not her husband’s. There could have been no reduction of it to the possession of the husband before an order of distribution, and while in fact in the possession and under the legal control of the administrator. Hence it could not be subject to attachment, by the trustee process for debts due from the husband.

There have been two decisions during the last year substantially involving this decision, one in Orange county and one in Washington county last November, in which the opinion was given by Judge Piekpoint, where it was held that the property of the wife, until actually reduced to possession by the husband, is not liable to be taken by trustee process for his debts.

Here, till decree of distribution, the husband could have no action against the administrator. After the decree his creditors could not take the share of the wife till the husband had taken it into his legal possession and control, and this must be shown by some -positive act of the husband, Short v. Moore, 10 Vt. 449, is directly in point to show that the distributive share of the wife is a mere chose in action.

The case of Parks & Co. v. Cushman, 9 Vt. 320, was where chattels and goods were in the hands of the administrator after a decree of distribution.

III. It is urged that the judgment of the justice that the trustee was liable, must protect the defendants. We think otherwise. First, it was the duty of the administrator to have disclosed the facts as to the wife’s interest as heir, and if he had stated that there was no decree of distribution, and that the estate was in his hands, he could not have been held liable as trustee. His omission to do this, and suffering a default, was negligence on his part, and a judgment so obtained cannot protect him. Secondly, upon the plea and replication it only appears that he was summoned as administrator of the estate of Ezra Gleason, to disclose the goods, chattels, etc., which he had belonging to E. G. Stacy, the husband. He suffered a default. He might well do so if, as administrator, he had property or credits belonging to the husband, and this may have been so without in any way involving the wife’s share in the estate. The estate may have been indebted to the husband wholly independent of the wife’s interest as heir. Hence, the judgment that the administrator was liable as trustee, does not imply that the liability arose from his having in his hands funds belonging to the wife. The presumption of the law would be, that the liability arose from debts due on property belonging to the husband absolutely, and in his own right.

The judgment is affirmed.

See Carruth v. Tighe, ante. p. 626.