Cartmell's Estate, In re
| Citation | 120 Vt. 228,138 A.2d 588 |
| Decision Date | 07 January 1958 |
| Docket Number | No. 20,20 |
| Parties | In re ESTATE of James R. CARTMELL. |
| Court | Vermont Supreme Court |
Bloomer & Bloomer, Rutland, for appellant.
William S. Burrage, Middlebury, for appellee.
Before CLEARY, ADAMS, HULBURD and HOLDEN, JJ., and KEYSER, Superior judge.
This case involves an appeal from the Probate Court for the District of Addison by Dorothy Murray, hereinafter referred to as the appellant. The probate court allowed the account of the special administrator of the James R. Cartmell estate. The appellant appealed from that order to the county court and as a part of the appeal filed her objections thereto. The special administrator entered his appearance by his attorney and the executor of the estate and certain heirs also entered an appearance by their attorney. They are collectively referred to herein as the appellees.
The appellant made a motion and request in the county court for a trial by jury and at the suggestion and request of the court framed five issues for submission to the jury. Her attorney specifically stated that his client 'has not and does not waive a jury trial.' The appellees by their respective attorneys objected to this motion and request.
After hearing the respective attorneys at a pretrial conference, the court stated that it took the view that the case was one that should be tried or disposed of either by the court or by reference to a commissioner. It then denied the motion for a jury trial as a matter of law and as a matter of discretion and allowed the appellant exceptions. In its discretion it passed the cause to this Court as provided in V.S. 47, § 2124 for hearing and determination on the exceptions.
The sole question presented is the effect of an amendment to what was then P.L. 3016 by No. 42 of the Acts of 1941, now V.S. 47, § 3100.
In the interpretation of statutes the fundamental rule is to ascertain and give effect to the intention of the legislature. The whole and every part of the enactment must be given attention as well as other statutes in pari materia. The true meaning of the legislature is to be ascertained, not from a literal sense of the words used but from a consideration of the whole and every part of the statute, the subject matter, the effect and consequences, and the reason and spirit of the law. Among other aids that may be employed in determining the intention of the legislature are consideration of the history of the statute's enactment and the trend of previous legislation. In re Estate of Cooke, 117 Vt. 336, 338, 91 A.2d 683. The intention of the legislature constitutes the law. State Highway Board v. Gates, 110 Vt. 67, 73, 1 A.2d 825, and cases cited.
When in Re Peck's Estate, 87 Vt. 194, 88 A. 568 was decided in 1913, P.S. 2984, which has now developed into V.S. 47, § 3100, was for consideration. It provided in appeals from probate court, 'when such certified copy is filed in the county court, it shall try the question; and if a question of fact is to be decided, issue may be joined thereon under the direction of the court, and a trial had by jury.' It was there held in 87 Vt. at page 197, 88 A. at page 570 that the right to trial by jury is statutory and not a constitutional right and the legislature can enlarge or restrict the right at pleasure. The history of the legislation and previous decisions of this Court were set forth and considered quite fully and we need not repeat it here except to say that the compulsory reference act there mentioned is now V.S. 47, § 1935. It was there held that under the statutes then existing, the verdict of a jury in probate appeals was only advisory and that the court could follow or reject it.
The case of In re Will of Smith, 88 Vt. 259, 92 A. 223, was an appeal from the probate court from the allowance of a will. This Court in 88 Vt. at page 273, 92 A. at page 228 followed the Peck case supra, and held that there was no statutory right to a trial by jury in such cases. That case was decided in 1914. The legislature by No. 98 of the Acts of 1915 amended P.S. 2984 by adding after the part that we just quoted in connection with the Peck Estate case, the following, 'and when the appeal is from a judgment allowing or disallowing an instrument purporting to be a last will and testament, a right to trial by jury shall follow.'
P.S. 2984 as so amended became in identical language G.L. 3466 in the revision of 1917. In referring to that statute and the right to trial by jury in a will case this Court in the case of In re Wood's Will, 95 Vt. 407, at page 411, 115 A. 231, at page 233, decided in 1921, said, The case of Eastern States Agricultural & Industrial League v. Estate of Vail, 97 Vt. 495, 124 A. 568, 38 A.L.R. 845, decided in 1923, reaffirmed the law that in ordinary probate appeals, except when the allowance or disallowance of a will is in issue, there was no statutory right to a trial by jury.
P.S. 2984 then became P.L. 3016 by the revision of 1933 and in the same identical language. The case of Brace v. Hulett, 109 Vt. 360, 196 A. 742, decided in 1938, involved an appeal to the county court from the allowance of an administrator's final account in probate court. This court reaffirmed the law that there was no statutory right to a trial by jury in that type of an appeal.
By No. 42 of the Acts of 1941, P.L. 3016 was amended to read as follows,-- The only change made by the amendment was to add the words, 'unless waived.'
This section, as amended, has been carried forward into V.S. 47, § 3100 without change except to change the two semicolons to periods and leave out the word 'and', thus making the section into three sentences, and the wording of the last sentence was rearranged without any change in its meaning or effect.
This points up the question here presented,--Did the addition of the words 'unless waived' by the amendment of 1941 provide a statutory right to a trial by jury in appeals in addition to the right already existing in will cases?
It is a general rule of construction that when the legislature amends a law, it intends to change the law, the contrary not appearing. City of Winooski v. Companion, 105 Vt. 1, 3, 162 A. 795. If the legislature by the amendment did not change the law or intend to do so,...
To continue reading
Request your trial
-
Matson by Kehoe v. Anctil
...must give effect to the intent of the legislature. In re A.C., 144 Vt. 37, 42, 470 A.2d 1191, 1194 (1984); In re Estate of Cartmell, 120 Vt. 228, 230, 138 A.2d 588, 589 (1958). The appropriate construction "is to be ascertained, not from a literal sense of the words used, but from a conside......
-
Town of Putney v. Town of Brookline
...a contest. Harris v. Harris's Estate, 82 Vt. 199, 218, 72 A. 912; Manley v. Johnson, 85 Vt. 262, 266, 81 A. 919; In re Estate of Cartmell, 120 Vt. 228, 240, 138 A.2d 588. The plaintiff seeks to protect the action of the court below on the claim that the selectmen of Putney and Brookline wer......
-
Town of Victory v. State
...if the Legislature seeks "to impose a duty and not simply confer a privilege or discretionary power." In re Estate of Cartmell, 120 Vt. 228, 233, 138 A.2d 588, 591 (1958). We are not suggesting that we have determined that the Town is entitled to relief or what relief might be appropriate. ......
-
Law's Adm'r v. Culver
...138 A.2d 425. The intention of the legislature constitutes the law. Tower v. Tower, 120 Vt. 213, 225, 138 A.2d 602. In re Cartmell's Estate, 120 Vt. 228, 230, 138 A.2d 588. In this case the statutes of limitations were not suspended during defendant's absence from the state. In support of t......