The opinion of the court was delivered by
Redfield, J.1. No question can properly be made here, or in the county court, in regard to the legality of the appointment of the plaintiff as administrator. That is a matter resting exclusively within the jurisdiction of the probate court, and cannot be inquired into in any other court, nor collaterally questioned in any way., The appointment by that court is as conclusive as the judgment of any other court of competent jurisdiction, and cannot be set aside, or impeached, in any other way than by proceedings in the pro-/ bate court for that express purpose.
2. Upon the question whether the administrator can maintain an action to recover lands for the benefit of the heirs, there can be little doubt. The statutes of 1797 and of 1821 [Tol. St. 144, § 66; SI. St. 346,. § 63,] are almost precisely the same, in regard to the authority of the administrator to bring actions of ejectment for the benefit of the heir. Both statutes expressly give the authority to the administrator to bring such action, or to prosecute one already brought by the intestate, “ to the use of the devisees, heirs, or creditors, of such estate, as the case may be.” It is true that the statute of 1821 expressly prohibits the heir, or devisee, of land from bringing an action of ejectment to recover the same, until decree of distribution. Biit that will not affect the right of the administrator to bring such action, which is given in express terms, unless we suppose the legislature intended to make a distinction between the right of the administrator to bring suits and to prosecute those already brought, which is not supposable.
3. But the right of the administrator to maintain an action “ to the use of the heir ” must depend upon the continuing right of the heir. The administrator’s right, in such case, is only incidental to that of the heir ; and when the principal right is gone, the incident must fall with it. And as there can be no doubt that the heirs .could have maintained an action in their own names, while the *174statute of 1797 was in force, — and, having acquired this right under that statute, they would not be deprived of it by the prohibition in the statute of 1821, — the rights of all the heirs, except the three girls and the youngest son, are clearly barred by the statute of limitations. And even if we should',, hold that the rights of heirs, accruing under the statute of 1797, will be suspended by that of 1821, the statute of limitations will equally prevail, whether the right of the heir is to sue in his own name, or in that of the administrator. But in practice the rights of heirs have been determined by the laws in force at the time of the descent cast, and this even in regard to the bringing of suits.
In regard to those heirs who have been under successive disabilities, until within the term of fifteen years before suit brought, we feel unable to say that they are exempt from the operation of the .statute. Our statute of limitations is so similar to the English statute, in this respect, that we should hardly feel justified in departing from the construction adopted by the English courts, inasmuch as that was known to the legislature at the time of passing the statute, and, it may1 well be presumed, was expected to be adopted by our courts, and was thus virtually made a part of the act itself, — as is the case in regard to all the English statutes which have been adopted here ; it is to be presumed it was done with the construction they had received in that country, unless the phraseology has been so modified as to exclude such construction.
The English statute is, to be sure, more explicit upon the matter •of successive disabilities than our statute; but the general scope of the statutes is the same. The English statute says, “such person,” that is, the person disabled, “or their heirs, may bring the action within ten years after his, or their, full age, dis-coverture, coming of sound mind, or deaththus obviously excluding the idea of successive disabilities, either in different persons, or the same person. It obviously confines the disability to one person. It is farther pro-vided that the disability shall have existed “ at the time the said right, or title, first descended.” Hence it is admitted, that, if more than one disability exist at the time the right accrues, the statute will not begin to run until all those disabilities are removed. This is consistent with the terms of the statute, and necessary to a ra*175tional application of its principles. The statute was intended to save the rights of the party until all those disabilities, existing at the time the right accrues, are removed. And we are not prepared to extend our statute of limitations farther than it has been extended in Westminster Hall, or any of the American states. Stowel v. Lord Zouch, 1 Plowd. 353. Demarest v. Wynkoop, 3 Johns. Ch. R. 129. Eager v. Commonwealth, 4 Mass. 182. In Connecticut this rule was at first disregarded; Eaton v. Sanford, 2 Day 523; but that case was finally overruled in Bunce v. Wolcott, 2 Conn. 27.
This disposes of the shares, except those of the daughter and son, whose shares it is not pretended are barred by the statute of limitations. And as this is a case where the statute applies, we could not also apply the doctrine of presumptive grants, which only applies to those cases which are not strictly within the statute. As this is not a case of joint tenancy, — in which all must join in bringing suit, — the rights of some may be barred, and not those of the others, — as some might have conveyed their interests by deed, or be barred by estoppel; — so also by the statute of limitations. One tenant in common may recover the whole estate against a stranger; and in Vermont tenants in common may join, by special statute; but it has never been held, that, the right of one tenant in common being barred by the statute of limitations, the rights of, all were gone, notwithstanding they were under disabilities; — and such a doctrine would be strict and unreasonable. Hides v. Rogers, 4 Cranch 165. 1 Ch. Pl. 56.
There can be no doubt as to the proof of ouster. The same proof, that puts the statute of limitations in operation, creates an ouster. In the present case the bill of exceptions states explicitly, that the defendant “ had been in the exclusive possession of the premises for about ten years past, and up to the present time, under the deeds given in evidence, claiming the entire estate.” " There would seem to be very little lack of proof upon this point.
Judgment affirmed.