Fillmore v. Morgan's Estate

Decision Date27 December 1919
Docket NumberNo. 177.,177.
Citation108 A. 840
PartiesFILLMORE v. MORGAN'S ESTATE.
CourtVermont Supreme Court

Exceptions from Bennington County Court: Pied M. Butler. Judge.

Petition by Henry D. Fillmore, administrator of the estate of Mason C. Morgan, deceased, to have the commission on the estate of William R. Morgan, deceased, renewed in order that a claim might be presented. The commission having been renewed, and Fanny T. Morgan, administratrix of the estate of William R. Morgan, having appealed, and her appeal having been dismissed by the county court, said Fanny T. Morgan excepts. Affirmed.

Argued before WATSON, C. J., and POWERS, TAYLOR, MILES, and SLACK, JJ.

Holden & Healy and Batchelder & Bates, all of Bennington, for appellant.

W. B. Sheldon, of Bennington, for appellee.

SLACK, J. The appellee, as administrator of the estate of Mason C. Morgan, filed a petition in the probate court for the district of Bennington, wherein the estate of William R. Morgan was then in the process of settlement for the purpose of having the commission thereon renewed, in accordance with the provisions of P. S. 2821. as amended by Acts 1908, No. 72, so that be might present a claim for the estate of Mason C. "Upon hearing," to quote from the appellant's brief, that court, by its order dated September 10, 1915, renewed the commission as prayed for by the appellee. From this order the appellant appealed to the Bennington county court. Her appeal was entered October 20, 1915. on January 26, 1910, the appellee filed a motion to dismiss the appeal "upon the grounds and for the reasons apparent upon the face of the record." The motion was granted and the appeal dismissed, to which the appellant excepted.

The only question for consideration is whether the court erred in dismissing the appeal.

The order from which the appeal was taken was an interlocutory one from which no appeal lies. Timothy v. Farr, 42 Vt. 43; Leach v. Leach, 51 Vt. 410; Felton v. Sowles, 57 Vt. 382; Wilcox v. Wilcox, 03 Vt. 137. The appellant's contention that the addition of the words, "except as otherwise provided," to G. L. c. 48, § 30, in force when Timothy v. Farr was decided, P. S. 2973 (G. L. 3455), enlarged the scope of this statute so that now an appeal lies from "every" order of the probate court, when the law does not provide otherwise, is without merit. The two cases last cited, both decided since the change referred to, were dismissed because the order appealed from was not a "final" order. Resides, the holding in Timothy v. Farr received the attention, and apparent approval,...

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14 cases
  • Glass v. Newport Clothing Co., Inc.
    • United States
    • Vermont Supreme Court
    • October 3, 1939
    ... ... Smith v. White's Estate, 108 Vt 473, 480, 188 A. 901; Fuller & Co. v. Morrison, 106 Vt. 22, 24, 169 A. 9. We will, ... Miner's Ex'x v. Shanasy, 92 Vt. 110, 112, 102 A. 480; Fillmore, Adm'r v. Morgan's Estate, 93 Vt. 491, 493, 108 A. 840 ...         In granting the motion ... ...
  • Barrell v. Renehan.
    • United States
    • Vermont Supreme Court
    • October 3, 1944
    ...jurisdiction of the subject matter is never out of time (Miner's Ex'x v. Shanasy, 92 Vt. 110, 112, 102 A. 480; Fillmore's Adm'r, v. Morgan's Estate, 93 Vt. 491, 493, 108 A. 840), this exception is before us for consideration. The defendant invokes the well recognized rule that the existence......
  • In Re Everett's Estate.
    • United States
    • Vermont Supreme Court
    • July 26, 1943
    ... ... 752; Hinsman v. Marble Savings Bank, 100 Vt. 48, 50, 51, 134 A. 635; Town of Barton v. Town of Sutton, 93 Vt. 102, 104, 106 A. 583; Fillmore v. Morgan's Estate, 93 Vt. 491, 492, 108 A. 840; Miner's Ex'x v. Shanasy, 92 Vt. 110, 112, 102 A. 480.The decree approved the account of the ... ...
  • Smith v. White's Estate, 702.
    • United States
    • Vermont Supreme Court
    • January 5, 1937
    ... ... Miner's Ex'x v. Shanasy, 92 Vt. 110, 102 A. 480; Town of Barton v. Town of Sutton, 93 Vt. 102, 106 A. 583; Fillmore, Adm'r, v. Morgan's Estate, 93 Vt. 491, 108 A. 840 ...         We have no occasion ... ...
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