Lawrence v. Englesby , 24 Vt. 42 ( 1851 )

’The opinion of the court was delivered by

Ishasi, J.

The demurrer in this case extends to the two first, •and so much of the third plea in bar, as relates to the insolvency of the petitioner. Our attention, however, has been directed only to the first plea, as we entertain no doubt that the decree of the probate court therein set forth, is a bar to this petition.

This petition was not brought under that provision of our statutes authorizing the probate court to remove an administrator for matters arising subsequent to the appointment; for no matter arising subsequent to that decree, is stated or alledged in this petition. The reasons for which the petitioner now asks the prayer of his petition to be granted, existed before that decree of the-probate court was made, to the same extent they now exist; and were, or might have been, the subject of investigation. We can-not in this collateral manner, review the correctness or propriety of that decree, or of any matters within the jurisdiction of that court, involved therein. Whether Mr. Englesby was a proper-person to be appointed administrator or not, and whether a request of the next of kin, short of the whole number, should have been regarded by that court as sufficient to warrant the appointment as made, were all questions properly arising and directly in issue before the probate court, and which that court had ample and full jurisdiction to adjudicate and determine; and that adjudication has become a matter of record. This petitioner, if entitled as one of the next of kin, to letters of administration, and all other persons interested in that estate, were parties to those proceedings, and had they felt aggrieved thereby, a right of appeal was given to each. Compiled Statutes, 324, Sec. 28. The decrees of probate courts are as conclusive as the orders and decrees of any other court, when acting within the sphere of their jurisdiction; and particularly are they conclusive upon those to whom the right of appeal is given, and when that right is not exercised. Probate v. Fillmore, 1 D. Chip. R. 420. Sparhawk v. Buel, 9 Vt. R. 41. Bush v. Sheldon, 1 Days, R. 170. Brown v. Lanman, 1 Con. R. 467.

If an appeal had been taken from that decree, the questions which the petitioner seeks to raise on this proceeding, could have been directly presented and considered; but cannot be in this collateral manner. Having neglected and waived an appeal from that decree, the whole matter of this petition has become adjudicated, and all interested are thereby concluded.

The judgment of the county court must be affirmed and duly ' certified.