Probate Court, Helen E. Selleck, Prosecutrix v. American Fidelity Co
| Decision Date | 04 January 1944 |
| Citation | 35 A.2d 495,113 Vt. 418 |
| Parties | PROBATE COURT, HELEN E. SELLECK, PROSECUTRIX, v. AMERICAN FIDELITY CO |
| Court | Vermont Supreme Court |
Special Term at Rutland, November, 1943.
Liability of Surety on Administration Bond.
1. Under Vermont statutes the probate court is given plenary and exclusive jurisdiction in the matter of settlement of estates.
2. The probate court has exclusive jurisdiction of the settlement of the accounts of executors and administrators, and their adjustment cannot be drawn into another court.
3. A decree of distribution is indispensable to any right of action against the executor or administrator by the heirs and no action can be maintained by them until the amount of the estate to which they are entitled has been settled and determined by the probate court.
4. The surety on an administration bond is not a necessary party to the settlement of the administrator's account in the probate court.
5. Where a judgment or decree against the principal is necessary to fix the liability of a surety, or where the latter expressly, or by reasonable implication, agrees to abide such judgment or decree, it is conclusive against him although he is not a party thereto, in the absence of fraud or collusion.
6. A court of probate does not proceed according to the common law but has a special and limited jurisdiction given by the statute; and if it appears on the face of the proceedings that it has proceeded in a manner prohibited or not authorized by law, its orders and decrees are absolutely void and may be treated as a nullity.
7. The fact that a decree of distribution of an estate does not refer to funeral charges and other expenses does not make the decree a nullity; if there is error in such decree the remedy is by way of appeal and the decree, if unappealed from, may not be collaterally attacked.
ACTION BROUGHT UNDER P. L. 3059 against the defendant as surety upon an administration bond. Lamoille County Court, November Term 1942, Adams, J., presiding. Judgment for the plaintiff.
Judgment affirmed.
Fred E. Gleason for the defendant.
Vernon J. Loveland for the plaintiff.
Present MOULTON, C. J., SHERBURNE, BUTTLES, STURTEVANT and JEFFORDS, JJ.
This is an action brought pursuant to P. L. 3059 against the defendant as surety upon the bond of Carl Morgan administrator of the estate of Harrison Gregg. The prosecutrix as an heir at law seeks to recover as damages the sum decreed to her by the probate court. Judgment was entered for the penalty of the bond, pursuant to the statute, and thereafter the cause was heard on the breaches of the bond assigned by the prosecutrix. Findings of fact were made and judgment was entered for the prosecutrix, to which the defendant has excepted.
So far as material to the exceptions briefed the findings show the appointment of Carl Morgan as administrator, and the decree of the probate court, which sets forth that the administrator having refused and neglected to render an account, and
At the trial the defendant offered a copy of the commissioners' report showing claims allowed against the estate, and also offered to show a number of items paid by the administrator in the administration of the estate, including funeral expenses. These were all excluded on the ground that the decree of the probate court was conclusive, and the defendant excepted. As stated in defendant's brief, these exceptions raise the question whether, in an action such as this on the question of damages suffered by the prosecutrix, the defendant should have been allowed to show payments actually made by the administrator, in order to determine how much, if anything, was actually available for distribution.
Under our statutes the probate court is given plenary and exclusive jurisdiction in the matter of settlement of estates. Abbott v. Abbott, 112 Vt. 449, 452, 28 A.2d 375; First National Bank v. Commissioner of Taxes, 111 Vt. 281, 295, 16 A.2d 184; Kreichman v. Webster, 110 Vt. 105, 109, 2 A.2d 199; In re Estate of Curtis, 109 Vt. 44, 49, 192 A. 13; Walker's Guardian v. Hendee, 100 Vt. 362, 364, 137 A. 334; Sparrow v. Watson, 87 Vt. 366, 370, 89 A. 468; Hurlburt Brothers v. Hinde, 86 Vt. 517, 521, 86 A. 739; Powers v. Powers Estate, 57 Vt. 49, 52. That court has exclusive jurisdiction of the settlement of the accounts of executors and administrators, and their adjustment cannot be drawn into another court. Smith v. White's Estate, 108 Vt. 473, 480, 188 A. 901; Probate Court v. VanDuzer, 13 Vt. 135, 140. A. decree of distribution is indispensable to any right of action against the executor or administrator by the heirs, and no action can be maintained by them until the amount of the estate to which they are entitled has been settled and determined by that court. Island Pond National Bank v. Chase, 101 Vt. 60, 63, 141 A. 474, 59 A.L.R. 766; Baldwin v. Percival, 88 Vt. 211, 213, 92 A. 101; Husted v. Stone, 69 Vt. 149, 152, 37 A. 253; Adams v. Adams, 16 Vt. 228, 230; Short v. Moore, 10 Vt. 446, 450.
It follows that if the probate court had jurisdiction to make the final decree in question it is conclusive as to the administrator, and not subject to collateral attack by him, and if he were being sued here he would be bound by the terms thereof as to the amount to be distributed.
By the terms of the bond given to the probate court the administrator was obligated to render a true and just account of his administration within one year and at any other time when required by such court, and to perform all orders and decrees of the probate court by him to be performed in the premises. P. L. 2778. It is very apparent that the defendant as surety was not a necessary party to the administrator's accounting. In In re Scott's Account, 36 Vt. 297, 302, it was held that a surety upon a guardian's bond cannot become a party to the accounting of his principal. The same rule would apply to a surety upon an administrator's bond, except for the provisions of No. 84 of the Acts of 1876, enacted after the foregoing decision, which has now been carried forward into P. L. 2822 and P. L. 3280, allowing the surety upon such bonds, upon his application, to be admitted as a party to the accounting. These sections of the statute do not make the surety a necessary party.
The nature of the surety's liability on such a bond is aptly expressed in Judge of Probate v. Quimby, 89 Me. 574, 36 A. 1049, 1050, a case where it was held that the sureties on an executor's bond could not, on the ground that they had no opportunity to be heard, escape being bound by a judgment in...
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