Dartmouth Sav. Bank v. Schoen's Estate
| Decision Date | 06 April 1971 |
| Docket Number | No. 104-70,104-70 |
| Citation | 276 A.2d 637,129 Vt. 315 |
| Parties | DARTMOUTH SAVINGS BANK v. ESTATE of Max SCHOEN, by Palmer D. Ainsworth, Administrator d. b. n., c. t. a., et al. |
| Court | Vermont Supreme Court |
Black & Plante, White River Junction, for plaintiff.
Parker, Ainsworth & Richards, Springfield, for defendant.
Before HOLDEN, C. J., BARNEY, SMITH and KEYSER, JJ., and HILL, superior judge.
The plaintiff, a banking institution in Hanover, New Hampshire, brought its petition in Orange County Court of Chancery to foreclose three mortgages executed in its favor by Lillian S. Andrews, Executrix of the Estate of Max Schoen, late of Thetford, deceased. The property mortgaged was the homestead of said Schoen in Thetford. Max Schoen died testate. By the terms of his will the right to use and occupy the residence was devised to his wife, with a similar devise over to Lillian S. Andrews, his daughter. Upon the termination of each life tenancy all of the real estate was devised to Schoen's surviving grandchildren in equal shares. Max Schoen survived his wife and died leaving his daughter, Lillian, and three grandchildren, Douglas Bruce Andrews, Edward Elliot Andrews and Robert Keith Andrews surviving him. Mrs. Andrews was appointed executrix of the Schoen estate by the Probate Court for the District of Bradford.
On June 27, 1966, the executrix filed an application with the probate court for a license to mortgage all of the real estate of the deceased in Thetford. The petition alleged only that such mortgage would be beneficial to the estate and those interested in the estate. Consent to, and approval of, the granting of the license was made in writing on the petition by Lillian Andrews individually and as guardian of her three minor children (grandchildren of the deceased).
On July 25, 1966 the probate court granted the application and issued a license (Petitionee's Exhibit C) to the executrix making reference therein to the facts in the application as filed, stating that said mortgage would be beneficial to the heirs and all others interested in the estate. The license then provided: '* * * the said Court does hereby order and decree that the said real estate of said deceased, be sold and converted into money, and said executrix having been duly sworn to the faithful discharge of said trust in selling such estate.' The license then authorized the executrix to mortgage the real estate, 'either at public auction or private sale' and if by public auction certain requirements were specified to be met.
Thereafter, on August 21, 1966, the executrix executed a mortgage under the license to the plaintiff for $20,000.00. On December 12, 1966, the executrix executed a second mortgage to the plaintiff for $4500.00 and on June 27, 1967, she executed a third mortgage to the plaintiff for $5500.00.
Lillian S. Andrews is alleged to have died on April 30, 1969. As a consequence, the Probate Court on February 27, 1970, appointed Palmer D. Ainsworth of Springfield, Vermont, administrator d. b. n., c. t. a. of the Estate of Max Schoen and also guardian of the three grandchildren of said Max Schoen.
The petition to foreclose the three mortgages mentioned above was thereafter brought naming the Schoen Estate and the three grandchildren as defendants. The petition was met by an affidavit of defense and answers of the defendants which raised legal questions relating to the legality of the license to mortgage the real estate issued to Lillian S. Andrews, executrix, by the Probate Court for the District of Bradford and to the lack of authority of Lillian S. Andrews to mortgage the interest of the three grandchildren. The defendants' answer also averred that no license to mortgage was issued by any probate court having jurisdiction over the guardianship estates of the defendants.
The plaintiff then filed a motion for decree pro confesso notwithstanding the affidavit of defense. The parties filed an agreed statement of facts and the court, without hearing, made findings and, based thereon, issued its order that the petition be taken as confessed and granted plaintiff's motion for decree.
It is from this action that the defendants have appealed with the permission of the court below as required by 12 V.S.A. § 4601.
On appeal the defendants specify the following grounds of error.
application for license to mortgage did not set forth a purpose which is provided by Title 14 V.S.A. Sec. 2201.
2. The Executrix' application for license to mortgage did not comply with Title 14, V.S.A. Sec. 2202.
3. The Executrix, as Guardian of the three minor grandchildren, was without authority to mortgage the interest of her wards, title in said premises having vested in her wards upon the death of the grandfather.
4. The Probate Court was without authority to issue a license to mortgage on the application of the Executrix setting forth that the same would be beneficial to the heirs and all those interested in said estate.'
Title 14 V.S.A. § 2201 provides that on petition and after notice to all persons interested, if on hearing it appears to be for the benefit of the estate, the probate court may authorize an executor, administrator, trustee or guardian to mortgage any of the real estate for the following purposes: to prevent a sacrifice of the estate; to make repairs and improvements upon the estate; to pay debts, legacies or charges of administration; to pay an existing mortgage lien or tax on the estate, or to support a ward.
And 14 V.S.A. § 2202 provides that the petition shall set forth a description of the property to be mortgaged, the amount of money necessary to be raised, the nature and amount of the obligation to be secured, and the purpose for which the money is required. It is further provided that the decree of the court upon such petition shall fix the amount for which the mortgage may be given, the terms thereof and the rate of interest which may be paid thereon.
We note also that 14 V.S.A. § 1612 confers the power upon the probate court to grant a license to sell lands, for certain purposes, and on certain conditions, with the written consent and approval of the heirs, devisees and legatees, if it clearly appears that such sale of real estate would be beneficial to the persons interested and will not defeat any devise of lands. Although Dwight v. Eastman, 62 Bt. 398, 403, 20 A. 594, is not squarely in point, it supports the proposition that a conveyance of real estate by an executor, under license of a probate court, cannot defeat the interest of the unborn children as devisees, even though a guardian was appointed to confer such consent.
The parties, as well as the court below by its findings, agree that the legal title to the land in Thetford became vested immediately in the three minor grandchildren of Max Schoen upon his death, subject only to the life tenancy of Lillian Andrews and to the lien of the executrix to such an extent as might be required to pay the debts, expenses of administration and other expenses legally chargeable against the estate. This was our holding in the case of In re Callahan's Est., 115 Vt....
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In re Estate of Balkam
...the rule of immediate passage. See In re Estate of Bettis, 133 Vt. 310, 313, 340 A.2d 57, 59 (1975); Dartmouth Sav. Bank v. Estate of Schoen, 129 Vt. 315, 319, 276 A.2d 637, 639–40 (1971); Spencer v. Lyman Falls Power Co., 109 Vt. 294, 299, 196 A. 276, 277 (1938); Watkins v. Merrihew's Esta......
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Raymond, In re
...be unsuitable when the person appointed to serve has other interests in the matter before the court. In Dartmouth Savings Bank v. Estate of Schoen, 129 Vt. 315, 276 A.2d 637 (1971), the offices of administrator d. b. n., c. t. a. of the estate of Max Schoen, and of guardian of Mr. Schoen's ......
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J. S., In re
...interest, 33 V.S.A. § 653(a), renders the guardianship for naught in the matter in action, see e. g., Dartmouth Savings Bank v. Estate of Schoen, 129 Vt. 315, 322, 276 A.2d 637, 641 (1971). See also, In re Raymond, supra. Where the best interests of the child are drawn into question as in t......
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M. and G., In re, 241-73
...interest, here found to be the case, the rule of disqualification most recently expressed by this court in Dartmouth Savings Bank v. Schoen's Estate, 129 Vt. 315, 276 A.2d 637 (1971), has no application. There being no conflict of interest, the consent given by M.'s mother must be deemed to......