Adams v. Adams , 16 Vt. 228 ( 1844 )

The opinion of the court was delivered by

Williams, Ch. J.

This was an appeal from the decision of the commissioners on the estate of Friend Adams. The plaintiff’s claim is for his share as an heir to the estate of one Benj. Adams, of which Friend Adams was administrator; and the question is, whethér Friend Adams became indebted, in his life time, to the plaintiff, for whatever claim the plaintiff may have had to the estate of Benjamin Adams.

Whether the plaintiff was .such heir, whether there was any estate of Benjamin Adams to which the plaintiff was entitled, and what was the amount to which he was entitled, were .questions entirely within the jurisdiction of the court of probate, and the heirs could have no claim personally on the administrator, until this was ascertained by the probate court. Neither an action of assumpsit, nor any other action, can be maintained against the administrator, until .this has been settled and determined by the probate court. Friend Adams, therefore, was not indebted personally to the plaintiff for any sum in his hands as administrator of Benjamin Adams, and no action of assumpsit could have been maintained against him therefor, and consequently no such action can be sustained against his representatives. The claim was, therefore, rightly disallowed by the commissioners, and the decision of the county court was correct. It is not necessary for us to point out to the plaintiff his remedy ;— it is sufficient to say that this action cannot be maintained.

The judgment of the county court is therefore affirmed.