Collette's Estate, In re

• Decision Date: 03 January 1961
• Docket Number: No. 351,351
• Citation: 167 A.2d 361,122 Vt. 231
• Parties: In re ESTATE of Melvina COLLETTE.
• Court: Vermont Supreme Court

Page 361

167 A.2d 361

122 Vt. 231

In re ESTATE of Melvina COLLETTE.

No. 351.

Supreme Court of Vermont.

Jan. 3, 1961.

John B. Harrington, Eric A. Schuppin, Burlington, for plaintiff.

McNamara & Larrow, Thomas M. Reeves, Burlington, for defendant.

Before HULBURD, C. J., and HOLDEN, SHANGRAW, BARNEY, and SMITH, JJ.

SMITH, Justice.

This is an appeal from the Chittenden County Court from a verdict and judgment that the guardian accounts of Eugene Collette, Jr., as guardian of the Melvina Collette Estate were just and true accounts. The case was heard on appeal from the Probate Court for the District of Chittenden in the County Court and the verdict was directed by the trial court upon a motion for a verdict in his favor by the guardian, Eugene Collette, Jr. The appellant is a sister of the appellee, the guardian, and both are children of the ward, Melvina Collette.

The first question presented for our consideration and determination by the brief of the appellant is whether the lower court committed error in its direction of a verdict for the guardian. The determination of the question presented necessitates a brief summary of the procedure followed, and the evidence presented, in the lower court.

At a pre-trial conference, held just before the actual trial of the case below, all parties interested were represented by counsel. A transcript of the conference was made and is part of the record before us. Counsel for the present appellant stated to the trial court 'we are not going to question any items in the account outside of the hay account'. The record of the pre-trial conference clearly indicates that all parties to the proceeding agreed that the question of whether the guardian properly accounted for all hay in his hands belonging to the ward was the only issue to be decided. As the presiding judge below said 'Well, it seems to me that it is going to be, only, a question as far as this hay goes'. The pre-trial court is considered a part of the trial procedure in any cause. The subsequent course of action is controlled by agreements or admissions made at the pre-trial conference. In re Cartmell's Estate, 120 Vt. 234, 238, 138 A.2d 592.

The reading of the transcript of the trial below confirms that the parties followed this rule. The only witness who testified was the guardian, Eugene Collette, Jr., and he was questioned only as to the hay for which appellant says he did not account.

Prior to this appellee becoming guardian of his mother's estate this appointment had been held by Leon Latham of Burlington. The estate consisted of the home farm of the ward at Charlotte, Vt., and the personal property thereon. In the final account of Mr. Latham there appears this item, 'Hay in main barn--difficult to determine amount without removing considerable of it from the barn--quality appeared to be poor and value had to estimate, probably worth between one thousand and two thousand dollars'. The value was then set at $1500.00. It is this hay, and that cut on the farm while the appellee was guardian, minus a quantity sold for $81.00, for which the appellant says the guardian has not accounted.

The appellee became guardian of his mother's estate on Feb. 16, 1953. No inventory was filed by the appellee of the guardian estate after he received his appointment, presumably because the value of the estate already appeared in the records of the probate court. See 14 V.S.A. § 2792(3).

On Nov. 3, 1953, the Probate Court granted the guardian a license to sell the real and personal estate of his ward to John Collette, his brother and another son of the ward. The consideration was that John would support and care for the mother and furnish her medical care during her lifetime. The appellant here also appealed to the Chittenden County Court from the order of license. The Chittenden County Court, after hearing, filed findings of fact. No. 5 of the findings of fact, filed Sept. 16, 1953, states, 'The farm in question has not been 'farmed' for the past three years, is in a 'run down' condition, the buildings badly in need of repair and has a sales value of approximately $8,000.00. The personal property on the farm has little or no value.' The County Court issued its judgment order to the Probate Court for the District of Chittenden directing the issuance of a license of sale to the guardian of the real and personal property of his ward. No appeal was taken by the appellant from this judgment order. Under the license of sale then issued by the Probate Court the appellee deeded the farm and personal property on it, to John Collette on Nov. 3, 1953, conditioned on the support and medical care of Melvina Collette.

During his stewardship the guardian, Eugene Collette, Jr., filed two accountings. The first of these was filed on July 16 1954. It shows that he received $81.00 for the sale of some hay, and also shows expenditures made by him for the purpose of baling hay. This account shows the transfer of...