Carolina E. Bianchi v. Frank J. Martin, Judge

• Decision Date: 09 February 1920
• Citation: 109 A. 37,94 Vt. 160
• Parties: CAROLINA E. BIANCHI v. FRANK J. MARTIN, JUDGE
• Court: Vermont Supreme Court

109 A. 37

94 Vt. 160

CAROLINA E. BIANCHI v. FRANK J. MARTIN, JUDGE

Supreme Court of Vermont

February 9, 1920

January Term, 1920.

PETITION to the Supreme Court for Washington County for a writ of mandamus against Frank J. Martin, Judge of Probate within and for the District of Washington, commanding him to summon the plaintiff's guardian to render his account as such guardian to the probate court for said district and otherwise to proceed with said accounting in said probate court. Heard on an agreed statement of facts.

Petition dismissed, with costs.

Theriault & Hunt for the plaintiff.

Present WATSON, C. J., POWERS, TAYLOR, MILES, and SLACK, JJ.

OPINION

POWERS

This application is denied. It is established beyond question that a mandate will issue only when the right is clear, and no other adequate remedy is available. Sabine v. Rounds, 50 Vt. 74; Farr v. St. Johnsbury, 73 Vt. 42, 50 A. 548. But here the complainant had the right of appeal, which is ordinarily held to be adequate. State, ex rel. v. Schmetzer, 156 Ind. 528, 60 N.E. 269; Stockton v. Board of Education, 72 N.J.L 80, 59 A. 1061; Endowment Dept., etc. v Harvey, 6 Ala.App. 239, 60 So. 602; Ex parte Roe, 234 U.S. 70, 58 L.Ed. 1217, 34 S.Ct. 722. True, an appeal lies only from a final order or decree, and orders in matters of accounting in the probate court are frequently interlocutory merely. Wilcox v. Wilcox, 63 Vt. 137, 21 A. 423, and cases cited. But the circumstances here characterize this order and make it a final one. In re Cary's Est., 81 Vt. 112, 69 A. 736, is full authority for this holding. There, a trustee of an estate, of which a beneficiary had a life use, failed on the death of the beneficiary to render an account and turn the property over to the remainderman. Whereupon the latter petitioned the probate court to compel an accounting and distribution. Upon hearing, this petition was dismissed, and the remainderman appealed. It was held that the order was final and appealable. The trust has terminated, and there was nothing to do but close it up in the way sought by the petitioner. So here, if as the complainant says, the procedings in the county court resulted in a valid judgment dismissing the guardianship proceedings, nothing remained for the acting guardian to do but to settle his account and turn the property over to this complainant. This would close the whole matter. This he failed to do, and the probate cour...