University of Vermont v. Estate of Baxter , 43 Vt. 645 ( 1871 )

The opinion of the court was delivered by

Wheeler, J.

Each count in the plaintiff’s declaration sets forth an agreement by Chester Baxter with the University of Vermont upon consideration, and with a breach sufficient to constitute a good cause of action in favor of that institution against him. The pleas, put in issue by the demurrer, do not deny the consideration ; if they did, they would be bad upon this special demurrer, for that would amount to the general issue. Neither do they set forth what would have been a good defense to the several causes of action for Baxter himself, nor is it claimed by the defendant'that they do. But the defendant claims that the pleas show that there is no estate that should go to satisfy these causes of action, and that this is a good answer to them for him as executor. The plaintiff contests this claim, and here has been the principal controversy at this hearing. At common law executors were answerable absolutely, upon all causes of action that survived, to the same extent that the testator was, so far as they had assets; and were liable to judgment to be satisfied of assets they might afterwards have, if they had not sufficient at the time of the judgment. In this state no action, according to the course of the common law, is allowed against executors or administrators except ejectment, to recover some real estate, or replevin to recover some specific personal property. General Statutes, 401, § 15. Boyden v. Ward, Administrator, 38 Vt., 628. No other action can be prosecuted otherwise than by being presented to commissioners. The commissioners are appointed to receive, examine and adjust claims against the deceased. Gen. Stats., 400, § 1. They have jurisdiction of all actions that survive by the common law, and several others in addition. Gen. Stats., 391, §§ 10, 11, 12. But their jurisdiction extends only to the determination of .the validity of the claims. They have nothing whatever to do with the assets. Some of the property of the estate may be liable to go in satisfaction of some of the claims, and not of others. Homesteads and the products of them, and other property subject to peculiar exemptions, are frequently so situated. But the commissioners are not authorized to render any judgment to be satisfied out of any particular property. The distribution of the assets of the estate in satisfaction of the judgments appertains to the probate court, acting independently of the commissioners. Perrin, Aam’r, v. Sargent, 33 Vt., 84. Neither have the commissioners, as the law now stands in this state, anything to do with any question arising out of the solvency or insolvency of the estate. Their judgments are generally all as of one date; and are always so except for the purpose of supplying some accidental or irregular omission. The judgments are perfected by the action of the probate court upon them, and all of them become final when .any of them do, so far as the action of the commissioners is concerned, if all the proceedings are regular and in order. There are no means for making the assets known to the commissioners, and neither the existence or want of assets is made in any way the foundation of any judgment by them. The questions that they pass upon pertain wholly to the liability of the deceased, and not at all to his ability to meet his liabilities. Their judgments are like that part of the judgments at common law, in actions against executors and administrators, which pertains to the cause of action, aside from that part which pertains to the satisfaction of the judgments. On appeal from the decision of commissioners, the appellate court should decide the same as the commissioners ought to decide. The judgments, when rendered, are certified back to the probate court,' where the judgments of the commissioners are, and they stand there, with the judgments of the commissioners, in all things as if made by them. This is an. appeal from a decision of the commissioners on the estate of Baxter, and these pleas do not set forth a good defense to the causes of action declared upon, as those causes of action accrued to the University of Vermont. The University of Vermont and State Agricultural College, another corporation, is the plaintiff here. The causes of action that accrued to the University of Vermont were not assignable by that institution so ag to be suable in the name of an assignee. No action can be maintained in the name of any other party upon those causes of action, unless the rights of action that accrued to the University of Vermont have, by operation of law, accrued to the other party. No such right is claimed to have accrued to this plaintiff by the force of any law, except the act to incorporate the plaintiff. Laws of 1865, No. 83, p. 96. By the express terms of section twelve of that act, it was to take effect whenever the two corporations thereby united should vote to accept the same, and to surrender and relinquish to the corporation thereby created all the property belonging to them, and there is no provision in the act that it should take effect otherwise. The declaration alleges an organization of the plaintiff as a corporation, and a vote by the University of Vermont to accept the act and to surrender and relinquish its property to the plaintiff, but it does not allege any vote by the State Agricultural College, the other corporation, either to accept the act or to surrender and relinquish its property to the plaintiff.' The declaration therefore fails to show such facts as are necessary to make the law operative so as to vest the right to recover upon these causes of action in the plaintiff. A declaration should set forth not only a good cause of action in favor of some party, but a good cause of action in favor of the plaintiff in the suit, against the defendant. This declaration sets forth no cause of action in favor of the plaintiff against the defendant, and in this respect is bad. The pleas are sufficient for the declaration, and the judgment of the county court is correct.

Upon motion of the plaintiff, and the suggestion that this defect can be supplied by amendment, the pro forma judgment of the county court should be reversed, pro forma, with leave for the plaintiff to amend, upon the usual terms as to costs.

Judgment reversed, pro forma, and cause remanded.