Billings v. Billings.

• Decision Date: 08 November 1944
• Docket Number: No. 1050.,1050.
• Citation: 39 A.2d 748
• Parties: BILLINGS v. BILLINGS.
• Court: Vermont Supreme Court

39 A.2d 748

BILLINGS

v.BILLINGS.

No. 1050.

Supreme Court of Vermont.

Nov. 8, 1944.

Exceptions from Rutland County Court; Black, Presiding Judge.

Proceeding by Alvah B. Billings against Laura P. Billings for partition of real estate. Judgment for petitioner, and, to review an order instructing the partition commissioners to assign the real estate to one of the parties if he or she paid the other party such sums of money as the commissioners judged equitable, defendant brings exceptions.

Reversed and remanded with direction.

Before MOULTON, C. J., and SHERBURNE, BUTTLES, STURTEVANT, and JEFFORDS, JJ.

Lawrence & O'Brien, of Rutland, for plaintiff.

Philip M. M. Phelps, of Fair Haven, and Wayne C. Bosworth, of Middlebury, for defendant.

MOULTON, Chief Justice.

The parties own certain real estate as tenants in common, one of whom has brought a petition for partition as authorized by Sections 1964 and 1966 of the Public Laws. Judgment has been entered that partition should be made and commissioners have been appointed to set off the shares of the parties, as provided by section 1972. The commissioners have reported to the County Court that the real estate cannot be divided without great inconvenience to the parties, whereupon the Court has recommitted the matter to the Commissioners, instructing them to assign the real estate “to one of the parties provided he or she pays to the other party such sum of money at such times and in such manner as the Commissioners judge equitable.” The defendant excepted to this order and the cause has been passed to us before final judgment in accordance with P.L. sec. 2072.

The statute (P.L. 1977) under which the recommittal was made is as follows: “When it appears that the real estate, or a portion thereof, cannot be divided without great inconvenience to the parties interested, the court may order it assigned to one of the parties, provided he pays to the other party such sum of money, at such times and in such manner as the commissioners judge equitable.”

The ground of the exception is that under this statute it is the duty and function of the County Court to adjudge which of the parties shall be the provisional assignee and that the order is erroneous in that the determination of this question is left to the commissioners.

It is the fundamental rule of statutory construction that the intention of the Legislature must be ascertained and given effect. In re Walker Trust Estate, 112 Vt. 148, 151, 22 A.2d 183, and cas. cit.; Town of Brandon v. Harvey, 105 Vt. 435, 439, 168 A. 708.

Where the statute is equivocally worded, so that the meaning is obscure, resort may be had to extrinsic matters, such as the history of the enactment, and the trend of previous legislation. In re Walker Trust Estate, supra; Town of Randolph v. Montgomery, 109 Vt. 130, 137, 194 A. 481; Town of Brandon v. Harvey, supra. So also consideration may be given to other statutes relating to the same subject matter which may be construed with reference to each other as parts of one system. In re Swanton Market Area, 112 Vt. 285, 292, 23 A.2d 536; In re Estate of Rushford, 111 Vt. 494, 497, 18 A.2d 175; Doubleday v. Town of Stockbridge, 109 Vt. 167, 171, 172, 194 A. 462. And here we may also avail ourselves of the meager assistance afforded by the decisions of this court in which the procedure in partition cases has been, tacitly at least, approved.

P.L. 1977 has come down to us from the revision of 1797, Chapter 48, § 5. It was originally enacted as follows: “That when it shall appear to the court, that any messuage, tract of land or other real estate cannot be divided without great inconvenience to the parties interested, they may order the same to be assigned to one of the parties; each party to whom the same shall be assigned, paying such sum or sums of money, at such time or times, and in such manner to the other party, or parties, as the commissioners, to be appointed by the court, shall judge just and equitable.” With some unimportant changes in punctuation this language remained in the successive revisions of 1808, 1824, 1839, 1850, 1862 and 1880, but in the revision of 1894 (V. S. 1528) it assumed its present form. It is evident under the original statute, that the County Court was intended to be the tribunal to be satisfied of the necessity of a partition by assignment and to possess the authority to order the assignment to be made. It is not to be supposed that the later change in wording indicates a different legislative intent.

P.L. 1977 is contained in Chapter 84 of the Public Laws, all of the sections of which relate to the same subject matter and therefore, in accordance with the principle to which reference has been made, may be construed with reference to each other as parts of one system. The title of the Chapter “Partition of Real Estate,” fortifies this conclusion. See Doubleday v. Town of Stockbridge, 109 Vt. 167, 172, 194 A. 462. In the case of a partition by allotment, after judgment of partition rendered by the County Court in accordance with P.L. 1972 and 1973, the commissioners are required by P.L. 1974 to divide the estate and to set out the share of each owner by metes and bounds. P.L. 1975 provides that: “The commissioners, having made partition, shall make return to the court of their doings, with a description of each portion of the estate set off, and a certificate of their having been sworn; and such report, unless cause is shown, shall be accepted by the court and judgment rendered thereon.” Title to the shares as set off, is transferred by recording a certified copy...