Avery v. Bender

• Citation: 230 A.2d 786,126 Vt. 342
• Decision Date: 06 June 1967
• Docket Number: No. 1077,1077
• Parties: Albert G. AVERY v. Walter G. BENDER, Executor of the Estate of Emillie B. Bender et al.
• Court: United States State Supreme Court of Vermont

Page 786

230 A.2d 786

126 Vt. 342

Albert G. AVERY v. Walter G. BENDER, Executor of the Estate of Emillie B. Bender et al.

No. 1077.

Supreme Court of Vermont.

June 6, 1967.

Bernard R. Dick, Rutland, for plaintiff.

O'Neill, Delany & Valente, Rutland, with Robert W. Owens, Jr., New York City, of counsel, for defendants.

Before HOLDEN, C. J., and SHANGRAW, BARNEY, SMITH and KEYSER, JJ.

BARNEY, Justice.

As a consequence of an earlier appeal of certain certified questions, this litigation stands determined as an action in rem. Avery v. Bender, 124 Vt. 309, 204 A.2d 314. It was commenced four years ago. It still has not progressed to the point of having responsive pleadings filed in answer to the original petition for declaratory relief. Since the decision in this Court three years ago the death of one of the named defendants has so preoccupied the litigants that the matter is no nearer being at issue than it was in 1963. New questions have now been certified here.

Recounting the complete history of the litigation and the trust with which it is concerned is not necessary for the purposes of this interlocutory appeal. Such information can be found in Avery v. Bender, 119 Vt. 313, 126 A.2d 99, and Avery v. Bender, supra, 124 Vt. 309, 204 A.2d 314. Some background will be helpful to an understanding of the issues, however.

The court of chancery has been moved to assert jurisdiction over certain property representing assets of a trust. The principal parties are beneficiaries under the trust instrument, plus the administrator of the estate of the deceased life tenant. The plaintiff complains of a wrongful removal, or attempted removal, of trust assets from this jurisdiction. When one of defendant beneficiaries died while certified questions were before this Court, the plaintiff brought a petition for revivor. He sought to substitute for the deceased defendant, Emilie B. Bender, the executor of her estate, Walter G. Bender, a legatee under her will. He also wanted to add as parties Helen E. Allen and Margery L. Metz, the other legatees and devisees under the will.

The plaintiff incompletely achieved his objectives below. The chancellor allowed revivor against Walter G. Bender, as executor, on a limited basis, denied revivor against the legatees and devisees, vacated service of process against Allen and Metz, and against Walter G. Bender individually, and declined to pass on the plaintiff's motion to amend. A motion to dismiss on the grounds of res judicata and estoppel by judgment, interposed by defendant beneficiary Feuerlicht, was heard by the chancellor. He made findings, and determining that the exhibits offered in support of the motion were insufficient as evidence to determine the issues raised, refused to a adjudicate them at this stage of the proceedings. He took the view that the issues of res judicata and estoppel by judgment were in fact affirmative defenses, and should not be disposed of until it was determined who were the parties actually in court. In one way or another, by certification by both sides, all these questions, or aspects of them, have been passed up to this Court. They circumscribe the proper ambit of our decision. Avery v. Bender, supra, 124 Vt. 309, 316, 204 A.2d 314.

Although some of the positions taken by parties in this litigation show an implicit concern with the possibility of jurisdiction in personam, the previous case settled that jurisdiction over the person was not accomplished by means of the process issued and served at the beginning of this action. Avery v. Bender, supra, 124 Vt. 309, 313, 204 A.2d 314. Such personal jurisdiction must be somehow acquired, it cannot be merely ordered. Howe v. Lisbon Savings Bank, 111 Vt. 201, 207-208, 14 A.2d 3. It can come about as a result of consent, or of seeking some kind of affirmative relief from the court. Noyes v. Noyes, 110 Vt. 511, 518, 9 A.2d 123. Otherwise, support for in personam actions and judgments must rest on jurisdiction acquired by summons and service meeting due process standards. 49 C.J.S. Judgements § 24, p. 54-67.

But in rem actions of this kind do not depend on in personam jurisdiction. Their jurisdiction derives from the court's authority over the property concerned. Avery v. Bender, supra, 124 Vt. 309, 315, 204 A.2d 314; In re Callahan Estate, 115 Vt. 128, 135-136, 52 A.2d 880. The judgments bind parties who have adequate notice and opportunity to be heard with respect to the proceedings. Wilder v. Wilder, 93 Vt. 105, 109, 106 A. 562; Woodruff v. Taylor, 20 Vt. 65, 75-76. Since this is an action in rem, the process should, and will, be ordered to stand as such notice of the proceedings.

Appropriately, the notice of the petition for revivor, called for in 12 V.S.A. § 4403, was personally served outside the state on the New York executor under our statute governing notice to out-of-state defendants. 12 V.S.A. § 911-914. By the authority of 12 V.S.A. § 913, this kind of service supports proceedings in rem in this state. See Gates v. Gates, 122 Vt. 371, 373, 173 A.2d 161. Perhaps it is superfluous to point out that a denial of the order to vacate service would no more have conferred, by itself, personal jurisdiction not otherwise acquired, than could the order of notice outside the state create, by itself, in personam jurisdiction.

The opposition to the petition for revivor is similarly based on jurisdictional concern. The substantive effect of such a petition, properly brought, is to preserve against the estate of a deceased defendant (or plaintiff) those rights and liabilities, involved in the original litigation, which are part of a surviving cause of action. 12 V.S.A. § 4401-4411. But it is no exception to the rule that personal jurisdiction must be appropriately acquired, and cannot be created simply by the issuance of an order. But service by order of notice on the executor is sufficient, in an in rem action, to accomplish the purpose of notice to the estate of the pendency of the litigation. 1 Am.Jur.2d 'Abatement, Survival and Revival', § 124, p. 138. With such purpose in mind, it should not, therefore, be limited to anything less than the issues advanced and jurisdiction claimed by the pleadings of the plaintiff, unless the plaintiff himself so limits it. The...