Carpenter v. Brown, 1108

• Decision Date: 05 January 1954
• Docket Number: No. 1108,1108
• Citation: 118 Vt. 148,102 A.2d 331
• Parties: CARPENTER v. BROWN.
• Court: Vermont Supreme Court

Page 331

102 A.2d 331

118 Vt. 148

CARPENTER v. BROWN.

No. 1108.

Supreme Court of Vermont.

Jan. 5, 1954.

Osmer C. Fitts and Paul N. Olson, Brattleboro, for plaintiff.

Beatrice J. Brown, Brattleboro, pro se.

Before SHERBURNE, C. J., and JEFFORDS, CLEARY, ADAMS and CHASE, JJ.

CLEARY, Justice.

This is a complaint for mandamus brought originally to this Court under V.S.1947, § 2111 and related sections, praying that a writ issue against the defendant, as Judge of Probate for the District of Marlboro commanding her to consider the complainant's application to extend the time for paying debts and legacies in the Estate of Frank O. Carpenter, deceased, late of Guilford in said District, in accordance with V.S.1947, § 3003, and to furnish the complainant, as administrator of said estate, a certificate that his appointment remains in full force and effect under V.S.1947, §§ 2800 and 2802.

The complainant alleges that he was duly appointed and qualified as administrator of the said estate on January 4, 1952; that he is the sole heir of said estate; that he diligently set about the administration of his trust; that he made inventory of the property of the estate as appraised by the appraisers; that he made prompt payment of all debts and funeral expenses; and that on March 7, 1952, he filed a United States Estate Tax Return in accordance with the United States Internal Revenue Code and the Treasury Regulations issued thereunder which require the filing of a return, where the value of the gross estate exceeds $60,000, at or before the expiration of fifteen months from the date of the death of the decedent.

On October 22, 1953, the complainant filed a petition in the probate court asking for extension of time to pay debts and legacies under V.S.1947, § 3002 and stating that by reason of the incompletion of the audit of the Federal Estate Tax Return he was unable to dispose of the estate and pay all of the debts and legacies within the period of one year originally allowed by the probate court at the time of his appointment. On October 23, 1953, the defendant advised the complainant that his authority as administrator expired on January 4, 1953, that application for extension of time for administration must be made before the administrator's appointment expires, and that the proper procedure was to file a petition for the appointment of an administrator de bonis non to settle the estate that had not been administered before the original appointment expired.

On October 24, 1953, the complainant requested the defendant to issue an administrator's certificate, which, by letter dated October 25, 1953, she refused to do, stating that under V.S.1947, § 3002, the probate court is prohibited from granting letters of administration for more than one year and that after such year has expired the probate court has no authority to grant an administrator a certificate that his appointment remains in full force and effect.

The defendant has indicated that all pertinent facts are fully and adequately set out in the complaint, that she knows of no further facts or matters which should be considered by the Court, and asks that the complaint the heard as a matter of law as though the equivalent of a demurrer to the facts had been filed.

The complainant asks that a writ of mandamus issue commanding the defendant to appoint a time for hearing and deciding his petition, asking for an extension of time to pay the debts and legacies of said estate and commanding the defendant to furnish the complainant a certificate of his appointment and of his authority to act as administrator of said estate, all as provided by V.S.1947, §§ 3002, 3003, 2800 and 2802.

§§ 3002 and 3003 are a part of Chapter 141 of V.S.1947 entitled 'Payment of Debts and Expenses', and are a part of subtitle 'Time for Paying Debts and Legacies.' They provide as follows:

'3002. Limitation; extension. At the time of granting letters testamentary or of administration, and probate court shall allow to the executor or administrator a time for disposing of the estate and paying the debts and legacies of the deceased person. Such time in the first instance shall not exceed one year, but on the application of the executor or administrator, from time to time as the circumstances of the estate require, the court may extend the time not to exceed one year at a time, nor so that the whole time allowed to the original executor or administrator shall exceed three years.

'3003. Same; hearing; notice. When an executor or administrator makes application to have the time for paying debts or legacies extended beyond one year, the probate court shall appoint a time for hearing and deciding on such application and shall cause notice thereof to be given to all persons interested * * *.'

The portions of §§ 2800 and 2802 which are pertinent here provide as follows: '2800. A register shall make out and sign letters of administration, * * * or other written instruments issuing from the probate court.' '2802. Judge may perform register's duties. The services and acts required of a register in section 2800 shall be valid if performed by the judge.'

The defendant contends that the letters of administration issued to the complainant constituted an appointment for one year beginning January 4, 1952, in compliance with V.S.1947, § 3002; that if he desired an extension of time to pay the debts and legacies of the estate under the provisions of V.S.1947, § 3002, he should have petitioned the probate court before the end of his appointment; that his authority as administrator had expired when he petitioned the probate court for an extension of time; that the provisions of V.S.1947, § 3002, prohibited the probate court from extending the time of settlement of the estate; that the intent of the Legislature in enacting V.S.1947, § 3002, is so plain and unambiguous that it does not admit of construction; that she had no authority to issue a certificate as requested by the complainant after his appointment as administrator had expired; that her ruling that the complainant was not eligible on October 22, 1953 to apply for an extension and her refusal to issue the certificate on October 24, 1953 were both made in the exercise of judicial discretion for which mandamus does not lie.

Mandamus does not lie to...