Phelps v. Parks, 4 Vt. 488. if it substantially agrees with the original. larity. 38 Vt. Skinner v. McDaniel, 4 Vt. 421. Williams, J., 285. dissenting. 140. Redemption from levy. By neglect 132. Town clerk's record controls as to redeem the levy of an execution according to notice. Where the record of the levy in the the terms of the statute (G. S. c. 47, s. 25), the town clerk's office showed a void levy,-as, title of the levying creditor becomes absolute. that it was for more than the sum required by A tender to the creditor personally, but not the execution to be levied, although it was accepted, has no effect to defeat or redeem the correct in the original ;-Held, that the execu- levy. Chandler v. Sawtell, 22 Vt. 318. tion and return were not so recorded as to 141. Debtor a tenant. Where the debtor, convey a title;--that the record was notice only or his tenant, remains in possession of the land of a defective levy, and might be so treated by levied upon, after the six months given for creditors and purchasers. Skinner v. McDaniel, redemption, and without redemption, he holds 5 Vt. 539. Baylies, J., dissenting. 133. Notice of a levy upon lands, which is defective, does not affect a party acquiring title against it. Ellison v. Wilson, 36 Vt. 60. as tenant of the creditor, and cannot set up an adverse possession. Aldis v. Burdick, 8 Vt. 21. 142. An execution debtor who remains in possession of land levied upon, after, the six 134. Evidence of fact of record. Held, months given for redemption, is liable in ejectthat a copy of an execution and levy from the ment. Mattocks v. Stearns, 9 Vt. 326. town clerk's office, and a copy of the same 143. In case on the statute to recover the from the county clerk's office, were evidence mesne profits of land levied upon, the defendthat the execution and levy had been duly ant may show that he had no title or interest in recorded in both offices. Hubbard v. Dewey, 2 the land, and has had no possession since the Aik. 312. levy. Bowne v. Graham, 2 Tyl. 418. VI. VACATING INFORMAL LEVIES. 135. A duly certified copy of record, from the county clerk's office, of a county court execution and the levy thereof upon lands, which record embraces a certificate of the town clerk 144. The power of the supreme court, on that he had duly recorded the execution and petition, under G. S. c. 48, s. 46, to vacate a levy in his office, and embraces also the sheriff's levy of execution upon lands for defects in the return stating the same fact, is prima facie levy, is not confined to defects apparent upon evidence that the execution and levy were duly the face of the levy. Briggs v. Green, 33 Vt. recorded in the town clerk's office. Benedict 565. Hyde v. Taylor, 19 Vt. 599. 22 Vt. 345. v. Heineberg, 43 Vt. 231. 145. Upon petition to the supreme court to 136. of time of record. Where a town vacate a levy, for want of notice to the debtor clerk's certificate disagrees with the officer's to choose an appraiser, the fact may be proved return, as to the date when the levy of an exe- by parol, in contradiction of the officer's return. cution was recorded in his office, such certifi- Briggs v. Green. cate will prevail over the return. Wilson, 36 Vt. 60. Ellison v. 146. Cured by lapse of time-two years. In a levy of an execution upon the whole undi137. Who may impeach levy. Where vided interest of an heir in the lands of his the plaintiff in ejectment made title by levy of ancestor, the proportionate share, or amount execution ;-Held, that it could not be im- of such interest, was not stated. Held, that peached for fraud in the judgment by a defend- this was, at most, a mere defect of form, and ant whose own levy was defective and void, so was cured by the lapse of two years without that he had not acquired the legal interest of the action of either party to correct it under the judgment debtor. Cleaveland v. Deming, 2 the statute. (G. S. c. 47, s. 49.) Hyde v. BarVt. 534. ney, 17 Vt. 280. 138. Where, in ejectment, the plaintiff 147. Whether G. S. c. 47, s. 22, applies to claimed title by virtue of a levy so defective as the levy of an execution on separate parcels of to render it void;---Held, that the defendant in land in two different towns-quare; but if so, possession, though without title and not a party and the appraisers are appointed partly from to the judgment and levy, could object to the both towns, and no injustice has been done, an levy as a defect in the plaintiff's title. Perry acquiescence for two years cures the defect, v. Whipple, 38 Vt. 278. under s. 49. Perrin v. Reed, 35 Vt. 2. 139. But otherwise, as to a stranger to the 148. 20 years. A petition to vacate the title of the execution debtor, where the defect levy of an execution, and for a new execution, is not in the judgment, execution or levy, but was refused after a lapse of more than twenty in a matter entirely collateral-as, for failure to years;-the presumption of law being that the execute a proper recognizance before taking debt was satisfied, nothing appearing to rebut out execution, such execution being good such presumption. Tudor v. Taylor, 26 Vt. against all persons until set aside for irregu-444. II. RIGHTS, AUTHORITY, And Duty. 149. Levy defective in substance. G. S. c. 47, s. 49, was intended to apply to formal defects, and not to cure, by lapse of time, a levy 7. In respect to proof of will. An exof execution defective in substance as to the ecutor has no authority under a will, without a subject matter of the levy, by taking too much judgment or decree of the probate court approvof the debtor's land to satisfy the execution. ing or allowing the will. Tucker v. Starks, Such levy is and remains invalid. Hopkins v. Hayward, 34 Vt. 474; and see Bell v. Roberts, 13 Vt. 582. Brayt. 99. 8. -giving of bonds. Where several are named executors, and only one has given bonds, he is sole executor. So, where several are named trustees, and only one accepts and acts, he is sole trustee, and may sue alone. Trask v. EXECUTORS AND ADMINISTRATORS. Donoghue, 1 Aik. 370. 9. The acts of executors and administrators done after their appointment, although before they have given bonds, are valid-the statute requiring bonds being regarded as merely directory. Probate Court v. Niles, 32 Vt. 775. Clark v. Tabor, 22 Vt. 595. 10. representation of insolvency. There is a vast difference between the system of settling estates in this State and in England. Here, the administrator must either represent the estate insolvent, or be taken to have sufficient 1. Appointment. The appointment of an administrator de bonis non by the probate court of a district other than the one of original ap-estate to satisfy all the creditors in money. pointment, but to which the town where the deceased resided had been attached by a later statute, was held not void, but only voidable on appeal. Clapp v. Beardsley, 1 Vt. 151. He must inventory and sell the real estate when necessary for the payment of the debts, and cannot require a creditor to levy his execution upon lands of the estate. In such case he can2. The appointment of an administrator not plead plene administravit. Bates v. Kimball, rests exclusively within the jurisdiction of the 1 Aik. 95. (1826.) (Since changed by statute, probate court, and its legality cannot be in- so that all estates are to be settled as if insolquired into in any other court, nor be collater-vent, without representation as such.) ally questioned in any way. McFarland v. Stone, 17 Vt. 165. 3. A decree of the probate court appointing an administrator, not appealed from, is conclusive as to all matters then existing and involved in the appointment. Lawrence v. Englesby, 24 Vt. 42. Steen v. Bennett, 24 Vt. 303. 11. The representation of the insolvency of an estate, without the appointment of commissioners, does not prevent a creditor from sustaining an action against the administrator. Blodget v. Brinsmaid, 7 Vt. 9. 12. making inventory. An inventory and appraisal of the choses in action of an estate 4. Revocation. The marriage of a female is seldom made in the probate court, and, guardian, executrix or administratrix, deter- whether done or not, is of no importance. mines her authority at once by force of the Adams v. Adams, 22 Vt. 50. Boyden v. Ward, statute, without any order or decree of the 38 Vt. 636. probate court for that purpose. (G. S. c. 72, s. 54. Ib., c. 51, s. 13.) Field v. Torrey, 7 Vt. 372. Lyman v. Albee, 7 Vt. 508. 13. Powers. An administrator may submit to arbitration any personal claim concerning the estate, so as to bind him, without the consent of the judge of probate. Dickinson v. Dutcher, Brayt. 104. 5. The supreme court, on appeal, reversed a 'decree of the probate court removing an administrator who resided out of the State, 14. Where goods under attachment were where he so resided when he was appointed, wrongfully taken from the officer, and he died and was the executor under the will, and where before action brought ;-Held, that his adminishe had a suit pending in this State, as administrator could maintain trover for the goods, for trator, against the party who sought to have the benefit of the attaching creditor, although him removed, &c. Wiley v. Brainerd, 11 Vt. 107. the intestate had paid nothing, and no claim had been presented against his estate. Hall v. Walbridge, 2 Aik. 215. 2 Vt. 520. 6. The removal of an administrator for any cause within the law, is matter of discretion, 15. An executor's power over the estate is merely, of the probate court, or of the county exclusive; and creditors or legatees cannot folcourt on appeal, and cannot be revised in the low the assets, and make the executor and supreme court. Holmes v. Holmes, 26 Vt. debtor parties to a bill in equity to enforce their claims, except in some special case, such 536. as collusion or insolvency. Robinson v. Swift, when there were no assets of the estate where3 Vt. 377. with the purchase could be made. Clapp v. 16. Whether an administrator de bonis non Beardsley, 1 Aik. 168. S. C., 1 Vt. 151, 167. has a right to represent the creditors of the 24. In administering an estate mortgaged, estate in the prosecution of their rights under the administrator should sell, either the whole an order of distribution,-as, by a prosecution or the equity, and dispose of the proceeds in of the bond of the principal administrator for payment of the mortgage debt in such way as non-payment of the debts under the order of that the mortgagee can claim a dividend only distribution, quære. Sargent v. Kimball, 37 upon the balance; and his return of sales and Vt. 320. account should so exhibit the manner of the 17. He is not responsible for the sum found transaction;-otherwise, it should be rejected. in the former administrator's hands and order-Duncan v. Fish, 1 Aik. 231. ed to be paid to the creditors, nor is he entitled 25. An administrator de bonis non may reto the possession or control of it. Poland, C. cover in ejectment against one who obtained J. Ib. 323. his title from the first administrator through collusion, and in fraud of creditors and heirs. Clapp v. Beardsley, 1 Aik. 168. 18. Joint executors, &c. In case of joint executors or administrators, the authority of each is entire, and the act of one is equally 26. A final recovery of lands in ejectment effectual as the joint act of all,-as, to give a by an administrator, as such, is prima facie release. Gleason v. Lillie, 1 Aik. 28. evidence of assets, which is not rebutted simply 19. Where one of two joint administrators by evidence of a quit-claim deed of earlier date, discharged a claim due the estate, in considera- executed by the intestate to the administrator, tion of a new promise to him ;-Held, that such of all his right to lands in the same town. promise was his private and individual right, | Blodget v. Brinsmaid, 7 Vt. 9. which his co-administrator could not control 27. An executor or administrator may or release. Ib. satisfy his execution upon the real estate of the 20. The plaintiff and two others were ex-debtor; and it must be set off to him, being ecutors of a will. The testator had placed in creditor, and not to the heirs of the estate he the hands of the plaintiff a note against the de- represents. Hathaway v. Phelps, 2 Aik. 84. fendant, for collection. After the testator's Eastman v. Curtis, 4 Vt. 616. death, the defendant gave a new note for the 28. An administrator who is out of possesold one, payable to the plaintiff or bearer, upon sion of land, whether he is disseized or has surwhich the plaintiff brought suit in his own rendered the possession to the heir, cannot name, as bearer. After this, the defendant paid maintain an action in behalf of the heir, for an the note to the other two executors, upon their act which is a damage to the inheritance. Lyagreement to indemnify him against the suit. man v. Webber, 17 Vt. 489. Held, a good payment. Griswold v. Clark, 28 Vt. 661. 29. An administrator has no authority to execute a deed to the party filing a declaration 21. The claim of a surviving administrator for betterments in ejectment. Tracy v. Spear, against the estate of his co-administrator, for 10 Vt. 490. (Changed by G. S. c. 40, s. 29.) property in his hands in trust to account for, 30. An administrator cannot mortgage one was held properly presentable, on an appeal part of the lands of the intestate, to pay a from commissioners, in a declaration in ac- charge upon another part. Green v. Sargeant, count; and that questions as to final distribu-23 Vt. 466. tion were foreign to the accounting before the auditor. Adams v. Corbin, 3 Vt. 372. 31. A title which one holds only as executor, or administrator, may be transferred by a con22. Where lands were devised to A, and he veyance of "all his interest," &c., where the was made executor jointly with B;-Held, intent to transfer the interest which he has as under the probate act of 1797 and without the executor, or administrator, appears from the aid of the act of 1821, that whenever all debts whole instrument. Pierce v. Brown, 24 Vt. due at the decease of the testator with charges 165; and see Stewart v. Thompson, 3 Vt. 255. of administration, &c., and all specific legacies 32. Where an administrator took a lease of have been paid, A holds the lands as devisee, and no longer as executor. Nason v. Smalley, 8 Vt. 118. lands from an outside party for the purpose of strengthening the right of his intestate, and after his death his administrators went into 23. In respect to real estate. It is the possession, and a recovery in ejectment was had duty of an administrator to redeem the mortgag- against them by the present defendant;-Held, ed estate with any property of the deceased, for that such recovery did not affect the right of the benefit of the creditors and heirs; and he the original intestate, in an action by his adcannot take an assignment to himself and set ministrator de bonis non, because the adminisup such title against the estate, unless it appear trators of the first administrator did not reprethat he purchased with his own funds, and sent the right of the original intestate, and they became trespassers by their entry. Perkins v. [quired by possession, will enure to the benefit Blood, 36 Vt. 273. of the estate. North v. Barnum, 10 Vt. 220. 33. Where an administrator by order of the S. C., 12 Vt. 205. Perkins v. Blood, 36 Vt. 288. probate court sold lands of the intestate and 40. An administrator has no right to become took back a mortgage of the same land to him- a purchaser of the estate upon which he adminself, as administrator, to secure part of the isters, even when he is solvent and pays the purchase money;-Held, that upon foreclosure full price. If he do so, those interested may of such mortgage the title became absolute in compel a re-sale, or they may, at their election, him in his individual capacity; that his subse-treat him as purchaser. Green v. Sargeant, 23 quent conveyance of the land to the same party Vt. 466. was not void, but conveyed such title as he had 41. Estate in foreign jurisdiction. acquired by the mortgage, although in his deed Choses in action belonging to a deceased person he described himself as administrator, and pro- have their situs in the place of residence of the fessed to convey and to covenant in that debtors. They become local by the death of the capacity; and that such covenants bound him creditor, and are bona notabilia or assets in the personally. Higley v. Smith, 1 D. Chip. 409. place of the debtor's residence, and (by Redfield, 34. An assignment, or conveyance, to one C. J.), according to our decisions, no one but an as administrator, vests the property in the administrator of the State of the debtor's resi estate represented by him, and it becomes sub- dence can collect, release or properly administer ject to the orders of the probate court, as the them. It is held in some states, that they may property of the estate. Shaw v. Partridge, 17 be remitted to the administrator of the place of domicile of the deceased, but this is no disAbbott v. Coburn, 28 Vt. Vt. 626. 35. A license granted by the probate court charge here, I think. to an executor or administrator to sell real 663. 5 Vt. 337. estate, does not authorize him to incumber the 42. Thus, an administrator in this State land; but the word "sell," in the license and has no control over choses in action, where the the statute, is the operative word, and imports debtor resides in another State. Bullock v. that the whole title is to be parted with for an Rogers, 16 Vt. 294. equivalent in money. This authority cannot 43. Where the domicile of the deceased was be enlarged, by his action under it, beyond this in another State;-Held, that an administrator, its legal effect. Where the executor under a appointed in this State, could not maintain an license to sell so much of the real estate of the action to collect a debt due the deceased from a deceased as would be sufficient to raise a certain debtor residing in another State. Abbott v. sum, sold and conveyed one parcel, and with Coburn, 28 Vt. 663. it the privilege of a foot pass to it over another 44. The owner of a bond for the payment of parcel;-Held, that the conveyance of the foot money, given by a debtor resident in New York, pass was unauthorized, and created no incum- died possessed of it in this State. After his brance upon the second parcel. Brown v. Van decease, the defendant took away the bond into Duzee, 44 Vt. 529. 36. The deed of an administrator need not recite the authority for executing it. It is sufficient if the authority exists, and he conveys as administrator. Langdon v. Strong, 2 Vt. 234. 24 Vt. 173. New York. The plaintiff, being afterwards appointed administrator in this State, demanded of the defendant in New York a surrender of the bond, and he refused. In an action of trover for the conversion of the bond ;-Held, that the paper contract (the bond) was a chattel in 37. An order or license of the probate court possession, the title to which vested in the to an administrator to sell real estate, where plaintiff, as administrator, from the decease neither the order nor the records recited such of the intestate, although the debt evidenced facts found as warranted the order, but only thereby belonged to the foreign administrator; that it appeared to the judge that a sale of the and that the plaintiff was entitled to recover the whole would best subserve the interests of all value of the bond. Bullock v. Rogers, 16 Vt. concerned, was held not sufficient to support a 294. deed from the administrator under such sale. 45. Foreign administrator. An adminClapp v. Beardsley, 1 Aik. 168. S. C., 1 Vt. istrator, appointed in another State only, 151. 2 Aik. 397. 2 Vt. 255. acquires no interest in property of the deceased 38. The acquiescence of an administrator, situate in this State, nor in the debts due from or guardian, in a mistaken boundary line for resident citizens of this State. Dodge v. Wetthe true line, does not bind minor heirs or more, Brayt. 92. Lee v. Havens, Brayt. 93. wards. Burnell v. Malony, 36 Vt. 636. Vaughan v. Barret, 5 Vt. 333. 39. An administrator cannot purchase in, 46. Such administrator cannot indorse a for his own benefit, an outstanding title to land note against a resident of this State, so as to of which his intestate died seized in fact, convey any right to the indorsee. Lee v. claiming title; and a title so acquired, or ac- Havens. 47. Nor discharge such debt, so as to bar a ally liable, nor are the sureties upon their suit thereon by an administrator appointed in probate bonds, for non-payment of the debts of this State. Vaughan v. Barret, 5 Vt. 333. 48. Nor maintain ejectment for lands in this State. Anon, Brayt. 103. 49. Nor convey lands of the intestate situate in this State, under an order of sale obtained in such other State. Brown v. Edson, 23 Vt. 435. the estates which they represent, until after 59. An action upon an administrator's or 50. Administrator of executor, &c. An executor died, pending an appeal from a decision of the probate court granting license to sell land of the testator for payment of debts. Held, that the administrator of the executor had no such interest in the proceeding as to justify his prosecuting the application in the county court. executor's bond is merely a means of enforcing The administrator of an executor would seem to have no further interest in the first estate, than to close the account of the executor in the probate court. Nason v. Smith, 13 Vt. 170. III. LIABILITY. a judgment of the probate court; a mode of 60. A declaration upon an administrator's bond, assigning as a breach the non-payment of debts, but not averring that the administrator had sufficient assets to pay all the debts, nor alleging any decree of the probate court for the 51. Personal contract. A promise by an administrator, where he had assets, to pay a debt against the estate, whereby it was not presented payment of the debts, was held ill, on demurrer to the commissioners for allowance, was held to the defendant's plea. Probate Court v. Saxbinding. ton, 17 Vt. 623. Willard v. Brewster, Brayt. 104. 52. A special promise of an executor to pay 61. An heir cannot maintain an action to an assignee a debt allowed against the against the administrator to recover his distribtestator's estate, in consideration of such assign-utive share, until the probate court has first ment and of sufficient assets in the hands of the ascertained and determined his right. Adams executor, is valid, and he is liable thereon in his v. Adams, 16 Vt. 228. own right. Moar v. Wright, 1 Vt. 57. 6 Vt. 675. 53. An administrator is individually liable on his personal contracts, though made for the benefit of the estate. Lovell v. Field, 5 Vt. 218. 62. Payment to former administrator. In an action upon an administrator's bond, assigning as a breach the non-payment to the prosecutor of a dividend struck in the probate court, receipts given to a former administrator for payments made by him on account of the 54. Administration bond. Where an claim, were held properly admitted under the executor or administrator is solvent, it is his plea of payment. Gordon v. Clapp, 5 Vt. 129. duty to inventory and account for any notes or 63. After judgment against an administraobligations which the deceased may hold against tor for the penalty in a probate bond for not him, and which are due and payable; and a accounting for land sold, the defendant was neglect to do so is a breach of his bond. Pro- allowed, in mitigation of damages, such part bate Court v. Merriam, 8 Vt. 234. of the proceeds of the sale as came to the hands 55. The neglect of an administrator de bonis of the administrator de bonis non, for which he non to return an inventory of the estate is a had accounted. Probate Court v. Bates, 10 Vt. breach of the condition of his administration 285. bond, for which an action lies. Wilson v. Keeler, 64. Legacy-Interest. As to the charge 2 D. Chip. 16. So also, for neglect to render of interest against an executor upon legacies his account, according to the condition of his payable to infants, and those of full age, see bond. Ib. Matthews v. Page, Brayt. 106. Sparhawk v. Buell, 9 Vt. 41. 56. The failure of an administrator, or of a 65. Liability for costs. Under the statutes guardian, to render his account in the probate of this State (G. S. c. 54, s. 13), executors and court according to the condition of the bond and administors are placed on the same ground with the order of the court, entitles the prosecutor to other suitors, as respects their liability for recover nominal damages, but no more. Probate costs; and execution therefor issues against Court v. Chapin, 31 Vt. 373. Probate Court v. them personally, though the damages recovered Slason, 23 Vt. 306. in cases appealed must be certified to the probate court. O'Hear v. Skeeles, 22 Vt. 152. 66. Illegal fees. The statute against tak 57. Preliminary decree of probate court. Executors and administrators are not person |