The opinion of the court was delivered by

— The decision in the case of Tyler v. Whitney, 8 Vt. R. 26, shows, that when a term of the court has elapsed after the appointment of an administrator, in which he could have been cited, he cannot, at a subsequent term, be cited in to defend or prosecute a suit pending against his intestate. If the administrator couW"be cited, in a case like the present, by the provisions of the statute, this proceeding is too late, as the administrators were appointed on the 18th of September, 1838, before the last term of this court.

Unless this process is within the spirit and meaning of the sixty first section of the probate act, I know of no law or *246practice which warrants it. The administrators of Hall cannot be compelled to setttle the account of Hall, as administraof Wentworth, in this court, nor can they here continue the suit which was here pending at his death. By his death all the previous proceedings, which were not perfected by a decree, are vacated. The administrators may find it for the interest of the estate to settle the administration account of their intestate in the probate court, or the sureties of Hall may be in danger. But they cannot be compelled to settle it in this court, in the suit depending at his death.

The citation is therefore dismissed, with the cost of this motion.