Adams v. Corbin

• Decision Date: 01 January 1831
• Citation: 3 Vt. 372
• Parties: JOSEPH ADAMS, surviving administrator of JOHN STARK, deceased, v. WARREN CORBIN, executor of PETER SAWYER, deceased
• Court: Vermont Supreme Court

3 Vt. 372

JOSEPH ADAMS, surviving administrator of JOHN STARK, deceased, v. WARREN CORBIN, executor of PETER SAWYER, deceased

Supreme Court of Vermont, Grand-Isle

January, 1831

Joseph Adams and Peter Sawyer were joint administrators of the estate of John Stark. While they acted as such, Sawyer had the custody and disposal of many articles of personal property, belonging to the estate of Stark, and died without settling his accounts about the same before the probate court. This left Adams sole administrator of the estate of Stark. Sawyer left a will in which Corbin was appointed his executor, who acted as such. Corbin represented the estate of Sawyer to be insolvent, and commissioners were appointed before whom the plaintiff exhibited his claim as administrator of Stark, for the property disposed of by Sawyer while he was co-administrator. This claim was disallowed by the commissioners; and, after their report was returned to the court of probate, the plaintiff appealed to the county court, where his claim was prosecuted in the form of an action of account. Judgement to account was rendered and an auditor appointed. The auditor made a report containing a circumstantial detail of the points litigated and the facts proved with regard to each. Exceptions were taken to this report; but it was accepted by the county court; and exceptions were taken to that decision, upon which the cause came to this Court. The points here litigated embraced but a small part of the report, with the exception to the plaintiff's mode of declaring; and sufficient is alluded to in the arguments, and in the opinion of the Court to be understood, without stating the report at large.

Argument for the defendant.--1. The defendant contends, the action of account will not lie against Sawyer, under the reported statement of facts, and, of course, the claim could not have been presented to commissioners.--Stat. 142. 2. That, if the action be properly brought, the court have decided incorrectly, in saying that the plaintiff ought not to answer the question, " whether he is now holden to the creditors of Stark's estate for their dividends." 3. That, if the action will lie, the defendant ought to have been allowed to put the question to the plaintiff, " whether the plaintiff now has in his hands any of the estate of John Stark, and, if so, how much?" 4. That, if there should be a judgment for the plaintiff in this case, he ought not to recover cost, but to pay cost to the defendant.--Stat 354.

Argument for the plaintiff.--1. The plaintiff, being the representative of the estate of Stark, has the legal title to the funds of the estate in whatsoever hands they may be found, unless barred by some rigid rule of law.--Stat. 340.

2. From the report it is evident, that the defendant's testator was indebted to that estate. The question is, can the defendant retain the property of Stark's estate in his hands, and refuse to account for it, or pay over to Stark's representative? Here is a debt, and the representative of all, who are interested in the fund, or estate, to which it is owing; and why shall it not be paid to him? It would seem, if the defendant is not in a situation to hold, against all the world, the sum found by the auditor to be due from the estate which he represented, that the judgement of the county court, accepting the report, ought to be affirmed. Stat. 142; 5 Pick. Rep. 96; Executors of Smith v. Chapman's executors, 5 Conn. 14; Executors of Loop v. Administrators of J. B. Loop, 1 Vt. 177.

3. The questions, proposed by the defendant's counsel to the plaintiff, for the purpose stated by the auditor, were properly overruled: for 1. The declared object of the inquiry was frivolous and impertinent. 2. The inquiry cannot be considered proper in any point of view--The action is brought to compel the defendant to give an account of the property, which his testator had received as administrator, and which had not been administered upon.

4. The question as to costs depends upon a construction of the proviso to the 93d section of the probate act.--(Stat. 354.) A fair construction of this section, taken in connexion with the provisions made for exhibiting and litigating all manner of actions before commissioners, and with the nature of an appeal therefrom, on any one cause of action, will not sustain the doctrine contended for by the defendant.

Smalley & Adams, for plaintiff.

Allen & Turner, for defendant.

OPINION

HUTCHINSON, Ch. J., after stating the case, pronounced the opinion of the Court.

Three exceptions only are now urged. The first is, that this action of account does not lie--That it would not lie in favor of plaintiff against Sawyer, if he were living, and therefore will not now lie against his estate. This action would not lie in favor of the plaintiff against Sawyer, while they remained co-administrators; and this for the good reason that Sawyer would be as much liable to the creditors and heirs, as the plaintiff would; and both and each must account before the probate court. This accounting is necessary to show their respective liabilities, in case of their defaults occasioning suits upon their probate bonds, and this, whether they had given one bond jointly, or each severally. If either ceased to be administrator, while living, by removing from the state, or in any way pointed out by statute, he ought to render his account before the court of probate; and, if he neglects, his bondsmen are liable. But a suit upon the probate bond is at the instance of a creditor or heir. But if a sole administrator resigns, or is...