108. A security given by the principal to applying it to the subject matter, the way must one of several, his joint sureties, inures to the be of such width as to be available, and capable benefit of all such sureties, like a payment, and of practical use for the purposes named, and cannot be controlled in its effect by the intent, was not limited to an absolute width of twelve or expressed purpose of the principal, that it feet. Walker v. Pierce, 38 Vt 94. shall go only for the benefit of one of the sureties. Fuller v. Hapgood, 39 Vt. 617. 5. Where a party grants a private way, he is not bound by implication to construct or keep in repair the way granted. Ib. 109. Release. Where certain sureties released their principal "from all liabilities" to 6. A way must start from a fixed point and them resulting from their suretyship;-Held, lie along a definite course to another fixed that the effect was to discharge, both at law and point; and, to acquire a right of way by adverse in equity, all claim for contribution from their use, the party must have used the same within co-sureties; and this, although such release its defined limits, uninterruptedly, openly, was executed before they had made any pay- notoriously, and adversely to the other party's ment, and was given upon a nominal consider-rights and use, for fifteen years. Plimpton v. ation, and only for the purpose of enabling the Converse, 44 Vt. 158. principal to become a witness in a suit against 7. Where an alley ran between several village them as such sureties, and although the release lots, and the owner of a lot lying upon the alley was more broadly expressed than was necessary claimed, by prescription and adverse use, a for that purpose, but not in ignorance of the private right of way in the alley for access to facts. Fletcher v. Jackson, 23 Vt. 581. See JUDGMENT, 57 et seq. PRIVATE WAY. his lot ;-Held, that the fact that the proprietors of other lots upon the alley had so used it, could not be taken into the account in aid of his claim. Dodge v. Stacy, 39 Vt. 558. 8. Where one claimed, by long continued use, a right of way to his lot over an alley owned by another;-Held, that to maintain the right he must prove a continuous use for 1. A right of way in the land of another fifteen years under a claim of right, with the cannot arise from mere necessity, independ- acquiescence of the owner of the alley; that the ently of the implication of a grant or reserva-acts and declarations of such owner were evition of such right; as, in case of some former dence in his own favor, as well as against him, unity of ownership of the two parcels. Tracy on these points, showing his understanding of v. Atherton, 35 Vt. 52. 2. If a right of way be appurtenant to close A upon close B, and both closes become united in the same person, the right of way, as well as all other subordinate rights and easements, is extinguished by the unity of possession. Plimpton v. Converse, 42 Vt. 717. the claim; and that such want of acquiescence could be indicated otherwise than by instituting legal proceedings against the use, or by placing any actual obstruction in the way, or actually preventing such use. Ib. 9. All parties who create an obstruction to a private way by the ordinary occupation of premises, as well lessor, lessee, sub-lessee and assignee, are jointly liable for the obstruction. Rogers v. Stewart, 5 Vt. 215. 10. It is no defense to an action for obstructing the plaintiff's private way, that there were other obstructions not complained of; and the plaintiff may recover his full damages for the 3. The owner of a tract of land conveyed to A a strip running through it, reserving to himself, his heirs and assigns, the right of a road across such strip to his quarry lot, which was part of the whole tract. He afterwards conveyed all his right, title and interest in the quarry lot to B. It appearing that such right of way was not necessary to B's enjoyment of the quarry obstruction complained of, and this will be a lot;-Held, that it was not an appurtenance to the quarry lot, nor right in it, and did not pass by the deed of the lot to B. Smith v. Higbee, 12 Vt. 113. 4. A deed conveyed a house, and a right to a pass-way to the rear of the premises "so as to give room to pass of the width of a common cartway for all necessary and ordinary household purposes." The pass-way was then in existence, having a turn in it nearly at a right angle, and requiring (perhaps) at that point more room to turn than twelve feet, which was proved to be the width of an ordinary cartway. Held, that to effect the object of the grant, bar to any other action for obstructing the same way during the same period. Ib. See POSSESSION. II. SETTLEMENT OF ESTATES. 1. By the heirs. 2. By regular administration. (b.) Ancillary administration. (d.) Assignment to widow. I. JURISDICTION AND AUTHORITY. I. Generally-Special cases. of the probate court to make partition among heirs, or devisees, that some of them had alienated their interests before the commission was applied for. The practice was, in such case, to make the partition directly among the heirs or devisees, leaving the shares so set out, subject to the effect of the alienation. Ib. 8. The probate court has no jurisdiction to make partition of lands where an estate is no longer in course of administration, and none of the original heirs retain their interest in the land. Cox v. Ingleston, 30 Vt. 258. 9. The jurisdiction of the probate court in the settlement of the estates of deceased persons exists and continues so long as there is any 1. Special and limited. The probate occasion for its exercise, and until there has court is a court having special and limited been a full and complete settlement and distrijurisdiction, deriving all its authority from the bution of the estate; as, to determine who are statute; and where it exceeds the authority entitled under the provisions of any will, and given it by law, its decrees are not erroneous to what they are entitled; also, who are the merely, but a nullity and void; as, where the heirs at law, and the proportion to which they court assigned to a widow, as dower, the one- are respectively entitled. Keeler v. Keeler, 39 half in fee of the real estate. Hendrick v. Vt. 550. See McFarland v. Stone, 17 Vt. 165. Cleaveland, 2 Vt. 329. 31 Vt. 673. Chamberlin v. Chamberlin, 16 Vt. 532. 2. The probate court in the matter of 10. A testator devised lands to his daughter appointing guardian for insane persons, spend- for her life, and after her decease "to my male thrifts, &c., in cases not connected with the heirs at law who may then live in South Hero." settlement of estates, is a court of special and After the death of the daughter, the executor limited jurisdiction; and in setting up the brought his petition to the probate court for a appointment in such cases, the pleading must distribution of this part of the estate, according state such facts as show that the court had to the will. All the debts had been paid, and jurisdiction to make the appointment. Holden all other parts of the estate had been divided v. Scanlin, 30 Vt. 177. 3. Exclusive in the first instance. Courts of probate in Vermont have the entire and exclusive jurisdiction of the settlement of estates, to the same extent that the jurisdiction of other matters of contract or tort, inter vivos, is given to the common law courts. Adams v. Adams, 22 Vt. 50. Boyden v. Ward, 38 Vt. 628. and passed over by the executor during the life of the daughter to the parties entitled under the will. Held, that this land was to be treated as part of the estate in the hands of the executor undistributed; and as it could not be determined, until the death of the daughter, who were the parties entitled to take under the will, the probate court had jurisdiction to determine this question, and to make distribution accordingly. Keeler v. Keeler. 4. The probate court has exclusive jurisdiction, in the first instance, of the settlement of 11. Power to imprison. The probate court the accounts of executors and administrators. has no authority under G. S. c. 48, ss. 14, 15, Probate Court v. Slason, 23 Vt. 306. Probate or otherwise, to enforce by imprisonment a Court v. Vanduzer. 13 Vt. 135. Bank of final decree for the mere payment of money; Orange Co. v. Kidder, 20 Vt. 519. Probate as, that an administrator shall pay over to his Court v. Chapin, 31 Vt. 373. 38 Vt. 638. 42 successor the balance found due from him on Vt. 323. 5. So, as to the settlement of a guardian's account. Probate Court v. Slason. the settlement of his account. Such a warrant of imprisonment was held void, and the party imprisoned was discharged on habeas corpus. In re Bingham, 32 Vt. 329. 6. Partition among devisees, &c. By the probate act of 1821, the probate court was 12. Equitable powers. The probate court the proper court to order partition among necessarily possesses a portion of equitable devisees and not the supreme court, as under powers. So far, at least, as the right of judgprevious statutes, although the testator died in ing extends, it is not confined to the technical 1793. It was competent for the legislature to rules of common law in opposition to estabchange the tribunal, or mode of remedy, not lished chancery principles. Robinson v. Swift, thereby affecting the right. Bull v. Nichols, 15 3 Vt. 283. Vt. 329. 13. Supreme court. Since the revised 7. Under this act, although not so specially statutes (1840), the supreme court has no genprovided, it was no objection to the jurisdiction eral jurisdiction in probate matters to re-hear and determine them upon their merits, but sits of the probate court acting within the sphere of merely as a court of error, the same as in cases its jurisdiction, not appealed from, is concluat common law. Holmes v. Holmes, 26 Vt. 536. sive upon those to whom the right of appeal is Boyden v. Ward, 38 Vt. 628. given; and where it has jurisdiction of the As to the auxiliary jurisdiction of Chancery, subject matter, the previous proceedings must see CHANCERY, I., 3. 2. To correct its decrees. be presumed to have been regular. Collard v. Crane, Brayt. 18. 15 Vt. 348. Judge of Probate v. Fillmore, 1 D. Chip. 420. Lawrence v. Englesby, 24 Vt. 42. 14. In general. The court of probate, on 21. Decrees of the probate court will be prepetition for that purpose, may correct errors, sumed to have been made upon proper notice irregularities and mistakes in former decrees, and formal proceedings, although such previous after any lapse of time short of twenty years. proceedings do not appear of record. SparSmith v. Rix, 9 Vt. 240. hawk v. Buell, 9 Vt. 41. 15. The probate court has power to re-open 22. To what extent conclusive. A and revise a former decree, so far as to charge decree of the probate court is conclusive as to an administrator with advancements and assets all matters which appear from the records to not mentioned in the decree; and has power, have been adjudicated upon, and binds that and it is its duty, upon proof of fraud, accident court itself, until by some proper application or mistake, in the adjustment of any items in a its action is called directly to annulling or former account, to alter and correct it in such correcting its decree. But such decree is not manner as to make it what it ought to have necessarily conclusive as to the result, or ultibeen. Adams v. Adams, 21 Vt. 162. 24 Vt. 407. mate balance, of an accounting, but only of the 16. It is now considered that the probate items adjudicated. Rix v. Smith, 8 Vt. 365. court, so long as the matter is pending either in 23. Instances. An administrator settled that court, or in the common law courts, on his account in 1820. In 1832 he settled a subthe administrator's bond, has full power to sequently accruing account, from which last re-examine any of its former decrees in the pre- settlement and decree an appeal was taken. mises, and to correct all errors, irregularities Held, that the correctness of the first decree and mistakes; and, possibly, this power of was not involved, and it could not be overre-examination extends even beyond this. Red- hauled in this proceeding. Ib. field, J., in French v. Winsor, 24 Vt. 407, cit- 24. In an action upon a probate bond for the ing Rix v. Smith, 8 Vt. 365. S. C., 9 Vt. 240. default of an executor in not having rendered Adams v. Adams, 21 Vt. 162. But see infra. a true account and fully administered ;---Held, 17. Qualification. The opening and modi- that nothing which had been passed upon and fying of former decrees of the probate court, so decided by the probate court on the settlement far as sanctioned by the supreme court, were of his account could be contested, nor could all cases of decrees upon the settlement of such settlement be impeached as fraudulent, administrator's accounts. They are based upon where the parties in interest had been notified; very questionable grounds of policy, and ought but that the settlement was not conclusive as not to be extended beyond similar cases in all respects. Redfield, C. J., in Stone v. Peasley, 28 Vt. 716. to property received by the executor and belonging to the estate, for which he neglected, either through accident or design, to render an 18 Limitation. A decree of distribution account. Probate Court v. Merriam, 8 Vt. 234. of an estate when once executed, vests the 25. Probate proceedings and the adjudicaproperty, and puts it out of the control and tions of probate courts are in rem, and bind all appropriate jurisdiction of the probate court; the world; but an adjudication is only concluand quare, whether it is susceptible of modifi-sive upon matters directly passed upon by the cation thereafter. Ib. court; not upon a matter which is only collat 19. A decree of distribution of real estate erally in issue. Thus, in the settlement of an exclusively to the heirs of full blood, not notic- executor's or administrator's account, the decree ing those of the half blood who were equally as to the proper distribution of the estate, is entitled, was held not susceptible of modifica- conclusive; but where the payment of legacies, tion, on petition of the excluded heirs, after or debts, is credited to his account, the legatees possession had been taken by the others under and creditors are not concluded as to the fact the decree, so as to effect a new distribution. of payment. Sparhawk v. Buell, 9 Vt. 41. Anon. Cited by Redfield, C. J., in Stone v. Probate Court v. Vanduzer, 13 Vt. 135. Peasely, 28 Vt. 720. 3. Conclusiveness of decrees. 26. The jurisdiction of granting administration, assumed and exercised by the probate court, cannot be collaterally attacked. Driggs v. Abbott, 27 Vt. 580. Abbott v. Coburn, 28 20. In general-Presumption. A decree Vt. 663. 29. The final allowance of an administra- 35. Where the defendant, in settlement of tor's account, in which he is credited for the his debt to an estate, gave his note therefor to payment of the debts, is equivalent to a decree the person primarily entitled to administraof distribution to that extent, and is conclusive. tion;-Held, that the appointment of such perIt cannot be impeached collaterally, by alleging son administrator after the commencement of fraud even. The decree can be corrected only the suit and before trial, and his ratification of by application to that court to re-examine the the settlement, removed all ground of defense account. Probate Court v. Vanduzer, 13 Vt. to the note for want of authority in the payee, 135. if any such defense existed before; and, 30. Decree of distribution-Notice. In semble, that without such appointment, and order to bind parties interested in the dis- where the settlement of the estate had been tribution of an estate by proceedings in the assumed by all the heirs, such defense would probate court ordering such distribution, or not prevail where the circumstances of the changing a former order of distribution, notice, actual or constructive, must be given. Stone v. Peasley, 28 Vt. 716. estate were such that there could be no reasonable apprehension that the settlement would be called in question. Taylor v. Phillips. But his 31. Where division was ordered by the pro- 36. Direct descent to heir. An heir of bate court of the lands of an estate held in com- an intestate has, immediately on the death of mon with a third person, under Slade's Stat. c. his ancestor, a vested interest in the estates 44, s. 84 (see G. S. c. 57, ss. 7-14), and the com- which he may convey by deed or which may mittee gave him notice of their proceeding to be attached or taken on execution. Hyde v. make division, and they made division and Barney, 17 Vt. 280. Hubbard v. Ricart, 3 Vt. their report was accepted by the court, and no 207. Austin v. Bailey, 37 Vt. 219. appeal was taken;-Held, that he should be 37. Lien of administrator. considered as having waived the want of notice grantee holds, as the heir did, subject to the required by the statute to be given before the administrator's lien, for payment of debts, if issuing of the order of partition, and that he any. Austin v. Bailey. was bound by the decree,-the court holding, nevertheless, that this requirement of the statute was not merely directory. Corliss v. Corliss, 8 Vt. 373. (Wrongly stated in 9 Vt. 77 and 21 Vt. 113.) 35 Vt. 631. 38. Statute of 1821. One son who, by a family arrangement, remained in possession of the real estate after his father's decease, without administration granted or division made by the probate court among the heirs, or convey32. Effect. A decree of the probate court, ance by them, was held prohibited by s. 63 of unappealed from, assigning the real estate to the probate act of 1821 from bringing ejectthe devisees, or heirs, divests the executor or ment. Boardman v. Bartlett, 6 Vt. 631. administrator of all title therein. Stone v. Modified by R. S. c. 48, s. 11. (G. S. c. 52, 8. Griffin, 3 Vt. 400. Tryon v. Tryon, 16 Vt. 14.) See Buck v. Squiers, 22 Vt. 484. 313. 39. Presumptive discharge of lien. The 83. A decree by the probate court of parti- statute requiring an assignment by the probate tion between heirs and devisees is conclusive as court of lands among heirs and devisees before to the mode and matter of the division, but they can maintain trespass or ejectment concludes nothing as to title. The question (Slade's stat. p. 346. s. 63), applies only in of estate and title is assumed-the court having cases where there must at some time be a no jurisdiction to determine that. If none division, and where the administrator has a exists, the proceeding goes for nothing. Hence, lien upon the lands for the payment of debts. after and notwithstanding partition, an heir or Such lien will be presumed satisfied after a devisee may set up paramount title in himself lapse of time. Hubbard v. Ricart, 3 Vt. 207. to the part set to the others. Grice v. Randall, Abbott v. Pratt, 16 Vt. 626. Cushman v. Jor 23 Vt. 239. dan, 13 Vt. 597. 40. Such presumption was allowed in behalf of one heir to whom the others had conveyed, | against his estate, the breach being the nonafter two years from the death of the intestate payment of debts under an order of distribu(Hubbard v. Ricart); as, against an admin- tion. This is an absolute claim. Ib. 320. See istrator in his suit against a grantee of some|Sherman v. Abell, 46 Vt. 547. of the heirs, after 60 years (Cushman v. Jor- 47. So, also, the bond of a guardian, a dan); in favor of a grantee of a devisee breach being claimed. Waterman v. Wright, against a stranger, after seven years (Abbott v. 36 Vt. 164. Pratt); in favor of the grantee of an heir in poseession after nine years (Austin v. Bailey, 37 Vt. 219). After 30 years, the heirs being in possession, the probate court has no authority to make partition. Cox v. Ingleston, 30 Vt. 258. Fifteen years is an absolute statute bar against claims. Roberts v. Morgan, 30 Vt. 319. 2. By regular administration. 48. A claim in behalf of a surety against the estate of a deceased person, contingent at the time of such decease but become absolute by payment by the surety before presentment for allowance, must be presented to the commissioners for allowance as an absolute debt, and not to the probate court for allowance as a contingent claim. (G. S. c. 53, s. 45.) Lytle v. Bond, 39 Vt. 388. 49. A libel for divorce was continued at a 41. Representation of insolvency. The term of the supreme court, and a decree for property of a deceased person is not subject to temporary alimony and to maintain the litigabe taken in execution, though attached on the tion was made, to be paid in installments. original writ, where the estate is represented Before any payment became due the libellee insolvent. Such representation has relation back deceased. Held, that this claim could not be to the time of the death. Smith v. Holmes, allowed as a debt against his estate. Nary v. Brayt. 133. (Note. All estates are now settled Braley, 41 Vt. 180. as insolvent estates, without representation of insolvency.) 50. Claims in behalf of estate. Commissioners have no jurisdiction of claims in behalf of an estate, except as offsets to adver (a.) Commissioners of claims-Proceedings and sary claims; and if such claims are abandoned effect. by the claimant before final judgment, the offset cannot become the basis of a separate judgment. Allen v. Rice, 22 Vt. 333. 42. Presentation—Absolute claims. All absolute claims against an estate represented 51. Equitable claims. Commissioners insolvent, whether due or to fall due, must be have no jurisdiction to adjust and allow claims presented to the commissioners for allowance, of a purely equitable character. Brown v. or they will be barred; and such claims pay. Sumner, 31 Vt. 671. Sparhawk v. Buell, 9 able in future are to be allowed at their then Vt. 41. Herrick v. Belknap, 27 Vt. 674. present value. Atherton v. Flagg, 2 D. Chip. 61. 52. Hence, such are not barred by a neglect to present them. Ib. 43. Contingent claim. Before R. S. 53. Limitation of inquiry. The juris(1840), claims against the estate of a decedent diction of commissioners of claims against the were to be settled as they existed on the day of estate of a deceased person extends only to the the decease, and contingent claims could not be determination of the validity of the claims. allowed by the commissioners; as, an annuity They have nothing to do with the assets, nor to fall due in future, dependent upon the life their distribution, nor with any question arising of the annuitant. Blackmer v. Blackmer, 5 out of the solvency, or insolvency, of the estate. Vt. 355. University of Vt., &c., v. Baxter, 43 Vt. 645. 44. A claim contingent and uncertain can- 54. Claims not presented, barred. not be allowed by the commissioners, and hence Claims in esse against the estate of a deceased is not barred by not presenting it, but may be person, not presented to the commisioners, are prosecuted, where it becomes absolute, against forever barred, whether the creditor resides the administrator or heirs, having assets. Lowry within the jurisdiction, or not; nor can v. Stevens, 6 Vt. 113. Brayt. 113. Jones v. chancery grant relief from the statute bar. Cooper, 2 Aik. 54. (Since changed by statute.) McCollum v. Hinckley, 9 Vt. 143. Burgess v. 45. What is. A contingent claim, under Gates, 20 Vt. 326. 41 Vt. 130-1. G. S. c. 53, is where the liability depends upon 55. In order to bar a claim against an estate some future event which may or may not because not presented to the commissioners, it happen, and therefore makes it now wholly must appear that the commissioners appointed uncertain whether there ever will be a liability. times and places of meeting to examine claims Poland, C. J., in Sargent v. Kimball, 37 Vt. and gave due notice thereof, as the statute pre321. scribes. Roberts v. Burton, 27 Vt. 396. 56. A claim against the estate of a deceased is not a contingent claim to be allowed as such person, not presented to the commissioners, 46. Held, that the bond of an administrator |