A claim against a deceased person as executrix cannot be presented to commissioners upon her estate, but must be determined upon the settlement of her account as such executrix in the probate court.

Appeal from an order of the probate court for the district of Caledonia accepting the report of commissioners upon the estate of Mary Flint, by which the claim of the plaintiff was disallowed. Trial by court at the June term, 1894, Caledonia county, TYLER, J., presiding. Judgment for the plaintiff. The defendant excepts.

M. Montgomery and W. P. Stafford for the defendant.

The administrator de bonis of Brainerd Flint's estate cannot maintain this action. The heirs are the proper parties. Potts v. Smith, 24 Am. Dec. 359; Sargent v. Kimball, 37 Vt. 323; Slaughter v. Froman, 17 Am. Dec. 33; Alsop v. Mather, 21 Am. Dec. 703; Chamberlain, Admr., v. Bates, Admr., 27 Am. Dec. 667: Stubblefield v. McRaven, 43 Am. Dec. 502; Grant v. Chamberlain, 4 Mass. 611, 613;

Tyler v. Wheeler, 160 Mass. 206; Curtis v. Curtis, 13 Vt. 517.

The settlement of the account of Mary Flint in the probate court is a bar until set aside by that court. Probate Court v. Van Duser, 13 Vt. 140; Rix v. Heirs of Smith, 8 Vt. 365; Paicher v. Bussell, 11 Cush. 107.

No suit can be sustained against the estate of Mary Flint unless it would lie against her in her life time. Sawyer v. Hibbard, 58 Vt. 375; Hatch v. Hatch, 60 Vt. 160; Howard and wife v. Brown, 11 Vt. 361; Re Estate of C. E. Benton, 66 Vt. 507.

So long as Mary Flint was alive, the only remedy was by settlement of her account as executrix in the probate court, and that is the only remedy now. Probate Court v. Pratt, 1st D. Chip. 233; Short v. Moore, 10 Vt. 446; Probate Court v. Vanduser, 13 Vt. 135; Curtis v. Curtis, 13 Vt. 517; Bank v. Kidder, 20 Vt. 519; Probate Court v. Chapen, 31 Vt. 373; Probate Court, v. Kimball, 42 Vt. 320; Probate Court v. Saxon, 17 Vt. 623; Probate Court v. Kent, 49 Vt. 388; Chapen v. Ward, 38 Vt. 628; Adams v. Adams, 22 Vt. 63; Foss v. Sowles, 62 Vt. 221; Mirriam v. Hemingway, 26 Vt. 565; Com. v. Stub, (Penn.) 51 Am. Dec. 518.

Bates & May and John C. Burke for the plaintiff.

MUNSON, J. In 1868, the decedent, Mary Flint, received letters testamentary on the estate of her husband, Brainerd Flint, and thereupon brought a suit as executrix upon a promissory note which was payable to the deceased, and is found to have been his property. The suit was continued the first term and settled in the succeeding vacation, the executrix receiving the full amount of the note. returned an inventory of the estate soon after receiving her appointment, and rendered a final account of her administration in June, 1869. She made no return of the note in the

She

inventory, and did not account for its avails in her settlement. The heirs of Brainerd Flint had no knowledge of this note or suit until after Mary Flint's death, which occurred in 1892. No further account of Mary Flint's administration has been rendered. The plaintiff, as administrator de bonis non of Brainerd Flint, presented a claim for the sum so withheld to the commissioners on Mary Flint's estate; and this is an appeal from the disallowance of his claim by the commissioners.

It was held in Davis v. Eastman, 66 Vt. 651, that Mrs. Flint's executor could not be made to account in equity for money belonging to Brainerd Flint's estate, for the reason that it was still within the power of the probate court to complete the settlement of that estate. We think it must also be held that the amount for which Mrs. Flint was accountable cannot be determined by the commissioners on her estate. It has been uniformly held in this state that persons who are charged with the administration of funds by appointment of the probate court, cannot be sued for a non-payment of the funds until their liability has been determined by a decree of that court. Short v. Moore, 10 Vt. 446; Probate Court v. Vanduzer, 13 Vt. 135; Curtis v. Curtis, 13 Vt. 517; Adams v. Adams, 16 Vt. 228; Bank of Orange County v. Kidder, 20 Vt. 519; Probate Court v. Slason, 23 Vt. 306; Merriam v. Hemmenway, 26 Vt. 565; Probate Court v. Chapin, 31 Vt. 373; Probate Court v. Kimball, 42 Vt. 320; Probate Court v. Kent, 49 Vt. 380; Foss v. Sowles, 62 Vt. 221. In Adams v. Adams, an heir to an unsettled estate presented to the commissioners on the estate of the deceased administrator thereof a claim for his distributive share. The court said it was for the probate court to determine whether the plaintiff was an heir, whether there was any estate for distribution, and if so the amount of the plaintiff's share; and held that until these matters were ascertained by the probate court the heir could have no

claim against the administrator personally, and that consequently an action could not be sustained against his representatives.

It is apparent from these decisions that the accountability of the deceased executrix must be determined by the probate court before any other action can be taken. As we hold that there can be no recovery in this proceeding upon the facts found, we do not consider the exceptions taken to the evidence received. Nor do we pass upon the question whether the proceeding could be sustained by an administrator de bonis non if otherwise properly brought.

Judgment reversed and judgment for defendant; to be certified.

DAVID B. MINARD ET AL.

V.

CHARLES L. CURRIER.

WASHINGTON COUNTY, MAY TERM, 1893.

Injury to wife's real estate. Husband as party and wit ness. Percolating water.

I. The husband is properly joined as a co-plaintiff and may testify if so joined in a suit for an injury to the realty of the wife, which is not held to her sole and separate use; and real estate given by the husband to the wife is not so held. Ordinarily a grant of land does not carry with it any right to percolating water as against the adjoining land of the grantor, but such rights may be conveyed by deed if such be the intent of the parties.

2.

3. Held, that the specific grant of certain wells together with all right and title "in and to what water would naturally flow into the above described springs or wells," conveyed to the grantee a right to have the water percolate in its natural state as against a subsequent grantee of a portion of the lot upon which the wells were situated.

Case for injury to the plaintiff's well. Plea, the general issue. Trial by jury at the March term, 1893, TAFT, J., presiding. At the close of the testimony the court directed a verdict for the defendant, and the plaintiff excepted.

E. W. Bisbee and H. A. Huse for the plaintiff.