William A. Boardman vs. Ebenezer Bartlett, 6 Vt. 631

After argument, the opinion of the court was delivered by Mattocks, J. — The sixth

section of the probate act, after directing that the executor or administrator may bring trespass or ejectment upon the right of the testator or intestate, and may prosecute any such suit, begun by the deceased, for the use and benefit of the heirs, devisees, or creditors, then says, “ that no such action shall be maintained by any heir or heirs, devisee or devisees, until such estate be set off to them by an order of the probate court.” The case at bar is plainly within this prohibition.

Here were two heirs, of whom the plaintiff was one, who were entitled to the land in question, after the dower of their mother should be set off. But the estate has not been settled in the probate court; and what is called the family arrangement is not valid to pass the title to the land. There is the case of Hulburd vs. Ricart, 3 Vt. Rep. 207, which goes as far, probably, as the statute will permit. That was where all the heirs conveyed to the plaintiff by deed; and, after possession of the plaintiff two years, the court presumed the lien of the administrators was satisfied.

They go on the ground, that it was only where no further division need ever be made, that the plaintiff can maintain his action without the land being set off by the probate court. Here a further division is .essential, before the estate can be settled. Whether this departure from the common law was wise, is. not the question ; but the statute having been made, must be enforced, like other laws; and, if this is not a case that comes within its purview,it would be impossible to conceive one. that would. The judgment of the county court is affirmed.