Hobart v. Herrick , 28 Vt. 627 ( 1856 )

The opinion of the court was delivered by

Redeield, Ch. J.

The question in this case, whether an appeal is allowable, from the report of the commissioners of the presentation of a contingent claim, seems to us decisive of this case.

It is apparent that it was not expected these contingent claims would be allowed by the commissioners, in the first instance, and, unless allowed to the amount of $20 or more, no appeal lies.

The 45th section of the 52d chapter of the Compiled Statutes, expressly provides that, if the claims shall become absolute, and be disputed by the executor, &c., it may be proved before the same board of commissioners, or a new board, to be appointed for that purpose, “ in the same manner as if presented for allowance before the commissioners had made their report.” This is obviously the allowance of the claims, and the first allowance contemplated by the statute. And clearly no appeal lies, except from an allowance. For this reason, we think the appeal was correctly dismissed.

We have spent no time in regard to the other questions. The probability is, perhaps, that we might get along with the question as to the bond, by regarding it as not properly arising upon motion to dismiss, but to be brought to the notice of the court by some specific plea, and by the party interested in having the defect supplied. This bond is probably well enough, as to the creditor, being in the very words of the statute, as to the creditor appealed against, “ to secure intervening damages and additional costs.” But it is defective, in not containing a provision to indemnify the estate from loss. This omission will not probably render the bond void, as to creditors. And, if the estate do not choose to interfere, it is, perhaps, questionable how far the creditor can be allowed to object to the bond on account of a defect, in no way affecting his interest.

As to the right of the creditor to appeal against another creditor’s; ^allowance, there is no doubt of its being given in terms by the statute, in case the executor or administrator declines to appeal. And if no claim was made by the executor or administrator to appeal or prosecute in his own behalf, we ought, probably, to infer that the appeal, by this creditor, was allowed because the administrator ^declined to appeal.” '

Judgment affirmed*,