B. O. Barber v. Henry Chase

• Decision Date: 03 October 1928
• Citation: 143 A. 302,101 Vt. 343
• Parties: B. O. BARBER v. HENRY CHASE ET AL
• Court: Vermont Supreme Court

143 A. 302

101 Vt. 343

B. O. BARBER v. HENRY CHASE ET AL

Supreme Court of Vermont

October 3, 1928

May Term, 1928.

Mandamus---Pleading---Effect of Answer Neither Admitting Nor Denying Allegations of Complaint---Cases To Be Tried on Issues Joined---Admission in Answer as Judicial Admission---Publication of Notice of Time and Place for Examination and Allowance Administrator's Account as "Public Notice" under G. L 3276---Office of Writ of Pro- hibition---Writ Inapplicable To Restrain Prosecution of Suit in Court Having Jurisdiction To Recover Escheated Estate under G. L. 3420--3422---Elements Necessary To Justify Mandamus---Entry of Void Order May Not Be Compelled by Mandamus---Probate Court of Special and Limited Jurisdiction---No Presumption of Jurisdiction of Courts Having Special and Limited Powers---Inheritance Taxes, When and Where Payable---Non-compliance with Statutory Requirements as Rendering Decree Approving and Allowing Administration Account Void---Distinction between Matters Making Decree Merely Erroneous and Those Rendering It Void---Lack of Jurisdiction To Render Decree Not Affected by Failure To Appeal Therefrom---When Decree Protects Administrator Who Acts Thereunder in Good Faith.

1. A mandamus proceeding is an action at law, and the complaint answer, and subsequent pleadings are governed by rules of common law, and must contain in substance the essentials of good pleading in an ordinary action at law.

2. In such proceeding, facts alleged in complaint as to which defendant answers that he neither admits nor denies, but calls upon petitioner for his proof, are in effect admitted to be true, since each party admits all such traversable allegations on opposite side as he does not traverse, and to refuse to admit or deny an allegation is in legal effect a refusal to answer at all.

3. Cases are tried in court on issues joined by the parties, and are not decided on an issue outside pleadings.

4. Admission by answer of a fact alleged in complaint is a judicial admission and is binding and conclusive.

5. Where petition for writ of mandamus, by administrator of an estate, to compel judge of probate and register to record decree of distribution made by judge's predecessor in office, alleged that notice as to date of examining and allowing administrator's account, and for decree of distribution of residue of estate, had been published in a weekly newspaper of the probate district three times for successive weeks on dates therein specified, as ordered by court, and answer was that these allegations are neither admitted nor denied, held that thereby such allegations were admitted.

6. Publishing in newspaper of probate district in successive weeks for three weeks of time and place of examining and allowing administrator's account, and making decree of distribution, in accordance with order of court relating thereto, held to be "public notice" to all persons interested and sufficient under G. L. 3276.

7. Writ of prohibition lies to prevent the unlawful assumption of jurisdiction of a cause, or of a collateral matter incidental thereto, by an inferior court.

8. Where town brought suit to recover balance of estate escheated to town and decreed to it by court in accordance with G. L. 3420--3422, from which decree no appeal was taken held that writ of prohibition against town and selectmen thereof, to restrain them from prosecuting such suit, was not an appropriate remedy, there being no claim that court to which selectmen had brought suit did not have jurisdiction over cause.

9. In order to justify issuance of writ of mandamus, it must be made to appear that duty sought to be enforced is a ministerial one, and that petitioner has a clear legal right to performance of duty and that the law affords him no other remedy.

10. Mandamus does not lie to compel entry of a void order.

11. A court of probate does not proceed according to common law, but has a special and limited jurisdiction given by statute; and if it appears on face of proceedings that it has proceeded in a manner prohibited or not authorized by law, its orders and decrees are absolutely void, and may be treated as a nullity.

12. There is no presumption of jurisdiction as to courts of special and limited powers, and when such courts exceed their jurisdiction, their whole proceedings are coram non judice and void.

13. Inheritance taxes, under G. L. 1090, 1091, 1095, are not payable until legacies or distributive shares and persons entitled to receive them are ascertained which cannot be done until amount of assets and liabilities are ascertained.

14. Under G. L. 1100, 1127, inheritance tax is to be paid by administrator to State treasurer, who must deliver to him a receipt in triplicate, one copy of which must be filed with probate court, before final administration account can be allowed, and probate court is required to find this has been done.

15. Where administration account filed in probate court showed that inheritance tax was paid to probate court on same day upon which administrator was appointed and qualified, held that procedure was irregular under provisions of G. L. 1090, 1091, and 1095, and, it not appearing that provisions of G. L. 1100 and 1127 were complied with, decree of probate court in so far as it approved and allowed administration account was coram non judice and void.

16. Probate court has jurisdiction to order estate distributed to heirs or legatees, and if, in so doing, some are omitted, this is a mistake of law or of fact, which makes decree erroneous, although not a nullity; but where court goes beyond statutory authority, and makes no attempt to distribute estate to anyone entitled by statute to receive it, decree is void.

17. Where probate court was without jurisdiction to render decree approving and allowing administrator's account and directing distribution, because of non-compliance with statutory requirements, such want of jurisdiction could not be aided by failure to appeal therefrom.

18. A decree of distribution, however erroneous, with which an administrator complies in good faith, protects him, but, where decree is void, since authority to act is a nullity, everything done in pursuance to it is of no effect, and affords no protection to the administrator.

PETITION FOR MANDAMUS AND PROHIBITION preferred to Supreme Court, Bennington County. Writ of mandamus was sought by administrator of the estate of John Tighe to compel judge of probate and register for the probate district of Bennington to record decree of distribution made by judge's predecessor in office, and writ of prohibition was sought by such administrator against Town of Pownal and its selectmen to restrain them from prosecuting a suit against him to recover balance of estate escheated to town and decreed to it by probate court in accordance with G. L. 3420-3422.

Petition dismissed with costs.

Fenton, Wing & Morse for the petitioner.

Collins M. Graves for the defendants.

Present: WATSON, C. J., POWERS, MOULTON, and CHASE, JJ., and THOMPSON, Supr. J.

OPINION

MOULTON

This is a petition for mandamus and prohibition, and is based upon the following facts: The petitioner was appointed and qualified as administrator of the estate of John Tighe on September 24, 1917. In August, 1918, he filed his final account as such administrator in the probate court for the district of Bennington, and the judge thereof, then Edward C. Bennett, assigned September 21, 1918, as the date for examining and allowing the account and for decree of the residue to those lawfully entitled to receive it, and ordered that public notice thereof should be given by publishing the order three weeks successively, previous to the day assigned, in the Bennington Evening Banner, a newspaper published in the district. Through an error of the publisher, however, the order was published only twice before the date assigned, once on August 30, 1918, and once on September 3, 1918. So far as appears, this error was not discovered until after this petition had been brought and issue joined. Some time prior to September 21, petitioner was notified by Judge Bennett that the hearing on the account was postponed, but on a later day the account was examined and allowed, and a decree was signed by Judge Bennett, which recited that:

"Whereas it appears by the records and files of said court, that after the payment of the debts and funeral charges of said deceased, and the expenses of administration of his estate, there remains in the hands of said Administrator personal estate of the value of $ 798.25.

"And no person having appeared to claim said residue as an heir or otherwise of the said John Tighe.

"It is ordered by said court that the said Administrator pay said residue into the Probate Court as the law directs.

"And said Administrator is ordered to pay over and deliver said estate according to said decree."

In pursuance of this order, the petitioner paid over the sum of $ 798.25 and received a receipt from Judge Bennett. For some reason, the original decree, with the receipt written upon the back of it, was delivered by Judge Bennett to the petitioner, and was not recorded. Judge Bennett deceased shortly before November 12, 1924, on which day the respondent Henry Chase was appointed his successor, and who now occupies the office of probate judge for the district of Bennington. What became of the $ 798.25 we do not know. Beyond the decree and receipt to which we have referred, there is no record of it.

After Judge Chase took office, his attention was called to the fact that the petitioner's account as administrator of the estate of John Tighe was on file, but no decree was to be found. He, therefore, assigned April 28, 1925, as the day for examining and allowing the...