EQUITY-ACCOUNTING BY EXECUTOR-LIMITATIONS. 1. An action in equity will not lie against the executor of a deceased executor to compel an accounting for property alleged to have been concealed by the latter on the settlement of the estate of his testator, as the probate court has jurisdiction of such an accounting.

2. Mere lapse of time will not deprive the probate court of the power to compel an executor to account, as limitation will not commence to run in favor of an executor till the trust relation is terminated or repudiated, and the concealing of assets by an executor on a final accounting is not a repudiation of the trust.

3. The effect of the discharge of an executor on a final accounting is limited to the assets disclosed, and is not an adjudication that there are no other assets.

Appeal in chancery, Caledonia county; Ross, Chancellor.

Bill by George B. Davis, administrator, against George T. Eastman, executor, for an accounting. A demurrer to the bill was sustained, and orator appeals. Affirmed.

Bates & May, for orator. M. Montgomery and W. P. Stafford, for defendant.

MUNSON, J. This bill is brought by the administrator de bonis non of the estate of Brainerd Flint, who died in 1868, against the executor of the will of Mary Flint, who was the wife of Brainerd, and died in 1892. Mary Flint served as executrix of Brainerd Flint's will, and rendered an account to the probate court in 1869. The bill charges that she concealed a large part of the estate which came into her hands, and made no account of it in her settlement with the probate court, and states that the heirs made diligent inquiry in regard to the estate, but failed to learn of the fraud of the executrix until after her death, and prays that the defendant, her executor, account to the orator for all the money belonging to Brainerd Flint's estate not already accounted for to the probate court. The bill is demurred to.

An accounting in this matter cannot be had in chancery, if the remedy at law is adequate. It is well understood that the v.30A.no.1-1

exclusive jurisdiction of the settlement of estates is in the probate court, and that equity will not interfere in their settlement, except to aid the probate court, when its powers are inadequate to the ends of justice. It is emphatically required by the whole tenor of our decisions that the court of equity withhold its hand unless a necessity for its interference clearly appears. If it is still within the power of the probate court to complete the settlement of this estate, it should be left to do so. The procurement of a money judgment is the only remedy now available to the orator. He is not seeking here to enforce the restitution of any specific property. The mere fact that the orator's demand accrues through the fraud of the deceased does not entitle him to proceed in equity, if his remedy at law is adequate. The death of the delinquent executrix has not deprived the probate court of the power to obtain a further accounting. It is true that our statute does not, in terms, make it the duty of the personal representative of a deceased executor or administrator to set. tle the administration account of his decedent. But we think that duty devolves upon him without statutory requirement. far as we know, the authority of the pro bate court in this behalf has never been questioned. The death of an executor, under the circumstances disclosed by the bill, can have no more effect upon the settlement than the death of one who is actively engaged in the duties of administration. We cannot hold that the death of the defendant's testatrix has deprived the probate court of the power to require this accounting, without transferring to the jurisdiction of equity the numerous cases where executors and administrators, while proceeding in due course, are removed by death before the completion of their trust.

So

The probate court is not debarred from proceeding in this matter by the lapse of time. No mere lapse of time can prevent that court from enforcing the settlement of an estate. Executors and administrators hold the property of the deceased as direct trustees for the persons entitled to it, and are liable to account to the probate court

It

for the benefit of such persons until the estate is wholly administered. A period of limitation will not commence to run in favor of trustees of this character until the trust relation is terminated or repudiated. Miles v. Thorne, 99 Am. Dec. 389, note; Kimball v. Ives, 17 Vt. 430; Bigelow v. Catlin, 50 Vt. 408; Drake v. Wild, 65 Vt. 611. The settlement of an estate on what purports to be a final account is not necessarily a termination of the trust. If assets remain in the hands of the accountant, undisclosed, he continues to hold them in his fiduciary capacity. cannot be said that this executrix ever repudiated the trust relation. She fraudulently kept from the heirs the knowledge which might have given to her conduct the effect of a repudiation. They cannot be charged with knowledge that she claimed the estate remaining in her hands, for they did not know that there was any such estate. The former decree of the probate court is not in the way of its requiring a further settlement. It is true that more than 20 years elapsed between the settlement made and the death of the executrix, and that in af firming the right of the probate court to open and correct its decrees this court has often spoken as if the right might not exist after the expiration of that period. But this case is not one that calls for a modification of the former decree. The effect of that settlement as a discharge of the executrix was limited to the estate of which she made returns. Probate Court v. Merriam, 8 Vt. 234; Rix v. Smith, Id. 365. It was not an adjudication that there was no other estate for which she should account. The injury complained of is not in the disposition of the estate of which account was rendered, but in the concealment of property which in no way entered into that account. The prayer for relief here is not an attempt to impeach collaterally the decree of the probate court, and proceedings of like extent can be had in that court without opening its decree.

We do not pass upon the question whether the bill, if otherwise proper, would be maintainable by an administrator de bonis non. Decree affirmed and cause remanded.

ROWELL, J., was absent, in county court.

PATTERSON v. SMITH et al. (Supreme Court of Vermont. Orleans. Aug. 25, 1894.)

ABATEMENT-PROCEEDINGS IN INSOLVENCY-DEBTS PROVABLE AGAINST ESTATE.

1. R. L. 1800, provides that claims against an insolvent debtor for property wrongfully taken may be proved as debts against his estate. R. L. § 1797, provides that, from the filing of the petition in insolvency until the determination of the question of discharge, no creditor can prosecute "to final judgment" any suit for a claim provable against the estate. Held, that a judgment in trespass, rendered in the county court before the petitions in in

solvency were filed, being subject to review, is not a final judgment, within the meaning of section 1797, so as to prevent a stay, as therein provided.

2. The stay provided for in R. L. § 1797, will not be denied on the ground that the demand is one not barred by discharge, unless proved, since said section relates to all provable claims, irrespective of the effect of discharge thereon.

Exceptions from Orleans county court; Taft, Judge.

Trover and trespass by Isaac T. Patterson against Luman F. Smith and others. Judg. ment for plaintiff. Defendants except. Mo tion for stay of proceedings because of insolvency proceedings. Granted.

W. W. Miles and Dickerman & Young for plaintiff. Bates & May, for defendants.

MUNSON, J. It is provided by R. L. § 1800, that claims against an insolvent debtor for property wrongfully taken, withheld, or converted may be proved as debts against his estate to the value of such property. It is provided by R. L. § 1797, that, from the filing of a petition in insolvency until the determination of the question of discharge, no creditor whose debt is provable against the insolvent estate shall be allowed to prosecute to final judgment a suit therefor against the insolvent debtor at law or in equity, and that any such suit shall, on the application of the debtor, if there has been no unreasonable delay in seeking a discharge, be stayed to await the determination of the court of insolvency upon the question of discharge. It is, however, further provided by this section that when the amount due is in dispute the suit may, by leave of the court of insolvency, proceed to judgment for the purpose of ascertaining the amount due; but in cases thus advanced to judgment execution must be stayed. When this case was called for hearing on exceptions, two of the defendants applied for a stay of proceedings under the foregoing provisions. The judgment in the county court was obtained before the petitions in insolvency were filed. The action is trover and trespass for a quantity of lumber. The plaintiff denies the right of the defendants to a stay of proceedings on two grounds. It is said that the demand is one that would not be barred by a discharge unless proved, and that the legislature cannot have intended to authorize a stay to await the determination of the question of discharge in cases that would not be affected by a discharge. It is insisted, further, that the judgment of the county court is a final judgment, and that the provisions for a stay have no application to proceedings for the correction of errors. We think the provisions in question must be held to relate to all provable claims. An examination of the insolvent law will suggest several considerations which may have led the legislature to extend the privilege of a stay to cases not within the effect of a discharge; but it is not necessary to present them in justification of our holding, for the

language of the statute is explicit. The right to a stay is clearly made to depend upon the provable character of the demand, and not upon considerations relating to the discharge. This view of the provision was taken in Ruszits v. Hilliard, 57 Vt. 60, where it was held to be binding upon a nonresident creditor, although the claim of a nonresident is not barred unless proved. We think a stay of proceedings can be granted in this court. It is true that a judgment of the county court is not vacated by the allowance of exceptions, but remains a final and valid judgment of that court until reversed or affirmed in the supreme court. Tarbell v. Downer, 29 Vt. 339; Snow v. Carpenter, 54 Vt. 17. But as long as the judgment is subject to reversal or affirmance there is an important sense in which it is not final. The final judgment of a lower court whose proceedings are brought up for review is not the final judgment in the case. We think it would contravene the purpose of the statute to give the term, as there used, its mere technical meaning. It is not necessary to regard the judgment of the county court as final, in a sense which would preclude the granting of a stay of proceedings in this court. It is apparent that an affirmance of the judgment would make it final in a sense not now applicable to it. Proceedings stayed, and case continued.

CHAPMAN v. LONG et ux. (Supreme Court of Vermont. Washington. Aug. 25, 1894.) CANCELLATION of Deed.

A father executed to his children, one of whom was a married woman, a deed of all his property, and received in return a deed conditioned for his support and for reconveyance on payment of expenses incurred. The latter deed was void, having been signed by the married daughter without being joined by her husband. No support was furnished, and defendants refuse to reconvey. Held, that equity will not compel defendants to execute a proper deed, but will consider the former deed voidable at the instance of the grantor, if the rights of third parties are not affected.

Appeal in chancery, Washington county; Taft, Judge.

Bill in chancery by George S. Chapman against Addie Long and Fred Long, her husband, to perfect title. Decree for orator. Reversed.

John H. Senter, for orator. Frank J. Martin and Frederick P. Carleton, for defendants.

MUNSON, J. In pursuance of an arrangement agreed upon by the orator and his two children, Perley A. Chapman and the defendant Addie, the orator executed to said children a deed of his real and personal estate, and received from them a deed conditioned for his support through life, and for a reconveyance of the property, upon the payment of expenses incurred, in case the orator should at any time desire to provide for him

self. The defendant Addie, who was and is a married woman, executed this conveyance to the orator without being joined therein by her husband. The orator has taken nothing from the defendants in the way of support, and has been refused a reconveyance on demand. The relief specifically prayed for is that the husband be decreed to join the wife in such proceedings as may be necessary to perfect the orator's title, and that both defendants be decreed to execute and deliver to the orator a deed of the property, and that, in default of a conveyance of the property, they be foreclosed of all equity of redemption therein. It might be difficult to give the orator the precise relief prayed for. The deed of the defendant Addie is void for want of a proper execution. It has been repeatedly held that the deed of a married woman thus defective cannot be perfected in equity. Tiernan v. Poor, 19 Am. Dec. 230, note. This is what is attempted by praying for a new conveyance properly executed. The right of a court of equity to compel another conveyance has been distinctly denied. In Townsley v. Chapin, 12 Allen, 476, a married woman had given a quitclaim deed without the required action of her husband. The husband having died, a bill in equity was brought to compel the execution of a new deed. It was not claimed that the court could have required the husband to take any action to perfect the void conveyance. The court considered it equally beyond its power to require a new conveyance from the wife after the husband's death. Nor, if this position is correct, can the alternative prayer for a foreclosure in default of a new conveyance be of avail. If the mortgage must remain void, the orator can obtain no title by a foreclosure of it. But we think equity can give the orator relief in another form. The orator and the defendant Addie entered into a certain agreement, which both understood was to be expressed in two instruments. Neither instrument alone was designed to express the whole agreement. The invalidity of one of the instruments prevented the agreement from being perfected as the parties intended it should be.

They attempted to carry their understanding into effect, but failed to do so. Certainly that fragment of the agreement em bodied in the instrument duly executed should not be suffered to stand as the agreement of the parties. We think that when persons undertake to perfect an arrangement by two instruments, and one of these circumstances is from ignorance so defectively executed as to be void, and the party in default refuses to remedy the defect, the other instrument should be treated by equity as voidable at the instance of the grantor, when the rights of third persons have not intervened. It is apparent from McKenzie v. McKenzie, 52 Vt. 271, that this relief need not be denied because of the character of the mistake. In that case two mortgages

had been given upon the same property. The orator had become the owner of all the notes secured by the first mortgage, but without any formal assignment of the security. It was arranged between the mortgagors and the orator that such writings should be made as would express the orator's relation to the first mortgage. The person applied to for this purpose had the orator take another mortgage and new notes in his own name, and discharge the first mortgage on the margin of the record. The orator having brought his bill for relief on the ground of mistake, it was claimed in behalf of the holders of the second mortgage that the mistake was one of law, and not of fact, and that no relief could be given; but the orator's claim was established as a first lien upon the property, notwithstanding the discharge. We think the deed of the orator should be treated as of no effect, and that such decree should be entered as will make his title good upon the record. Decree reversed, and cause remanded, with mandate.

25, 1894.) MORTGAGES-ASSIGNMENT OF NOTES OF A SERIES. 1. Where several notes of a series secured by a mortgage are assigned, with no agreemenɩ as to priority, a proportionate interest in the mortgage passes with the notes.

2. The assignee of such notes gave money to the mortgagor to purchase another of the series of the mortgagee. He did not disclose such agency to the mortgagee, who received the money as a payment of the note. Held, that the purchaser could not enforce the note, as against the mortgagee.

Appeal in chancery, Rutland county; Tyler, Chancellor.

Bill to foreclose a mortgage by Ann Bartlett against George Wade and others. Decree for oratrix. Defendants appeal. Reversed.

November 14, 1885, John Tiernan and wife executed the mortgage described in the bill of complaint to the defendant Wade to secure the payment of 18 promissory notes described in said mortgage. Subsequently to the execution of the mortgage, and before any of the notes fell due, the oratrix purchased 4 of said promissory notes, upon which the master found due September 12, 1893, the sum of $482. When the oratrix purchased and took these notes she knew that they were mortgage notes, and nothing at that time was said between her and Wade upon the subject of priority. Subsequently, the oratrix let Tiernan have a town order for $110 for the purpose of purchasing for her another one of said mortgage notes, which was about to fall due, and was in amount $50. Tiernan obtained the money upon this town order, notified Wade that he desired to

take up the mortgage note, and paid him the money due on that note and the interest on the other notes,-saying nothing to Wade about the oratrix, or the fact that it was her money,-and Wade understood, and had a right to understand, that Tiernan was paying the note. Tiernan took the note to the oratrix, and gave her his own note for the difference between the amount due on the note and the town order. The master found that there was due on this note, September 12, 1893, $68.87; so that, if the oratrix was entitled to recover in respect of the five notes, there was due her, as of September 12, 1893, the sum of $550.87.

Butler & Moloney, for orator. Geo. E. Lawrence, for defendants.

MUNSON, J. It is the settled law of this state that when a part of the notes secured by a mortgage are assigned, without any contract provision in regard to the security, a proportionate interest in the mortgage. passes with the notes, by operation of law. Keyes v. Wood, 21 Vt. 331; Blair v. White, 61 Vt. 110, 17 Atl. 49. This doctrine, as enunciated in the cases eited, is clearly inconsistent with any claim of advantage based upon the order in which the notes mature. The holding is not merely that the notes transferred remain secured upon the property, but that they continue to sustain the same relation to the property that they did before the transfer. A pro rata interest in the mortgage is the right to share pro rata in whatever security the mortgage affords. this respect one note stands upon the same footing as another.

The oratrix cannot enforce against Wade, the mortgagee, the note obtained from him through the agency of Tiernan, the mortgagor. It appears that she requested Tiernan to procure the note for her, and furnished him the money with which it was obtained. A short time before the note became due, Tiernan told Wade he wanted to take it up; and Wade thereupon accepted the amount of the note, and delivered it to Tiernan. The connection of the oratrix with the transaction was not disclosed, and Wade supposed that Tiernan was paying his note. Under these circumstances, Wade is entitled to have the note treated as paid. Tiernan's proposal was accounted for by the relation he sustained to the debt, and Wade had no reason to suppose that he was acting as the agent of another, and consequently was not charged with any duty of inquiry. If the note were to be kept on foot as against Wade, it would effect a sale of it when no sale was intended. Wade was under no obligation to give up the note, except on payment, and a purchase of it could not be effected under the guise of payment. The holder of a note cannot be made a seller without his consent. Collins v. Adams, 53 Vt. 433; Wells v. Tuck. er. 57 Vt. 223. Decree reversed and cause remanded, with mandate.