Flory v. Flory's Estate

• Decision Date: 08 January 1925
• Citation: 127 A. 369
• Parties: FLORY v. FLORY'S ESTATE.
• Court: Vermont Supreme Court

127 A. 369

FLORY

v. FLORY'S ESTATE.

Supreme Court of Vermont. Rutland.

Jan. 8, 1925.

On Motion to Amend Mandate, Feb. 4, 1925.

On Motion to Amend Mandate.

Exceptions from Rutland County Court; Julius A. Willcox, Judge.

In the matter of the estate of Adolphus Flory, deceased. From order of the probate court granting Hannah Flory, widow of deceased, an extension of time for waiving pepuniary provisions of will, William H. Pelkey, executor, appealed to County Court. Exceptions of Hannah Flory to denial of her motion to dismiss appeal passed to Supreme Court before final judgment for determination. Judgment reversed, and appeal dismissed.

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

Marvelle C. Webber, of Rutland, and Phelps & Pratt, of Fair Haven, for appellant.

Lawrence, Stafford & Bloomer, and George M. Goddard, all of Rutland, for petitioner.

WATSON, C. J. This is an appeal from the decision of the probate court for the district of Fair Haven, allowing Hannah Flory, the widow of Adolphus Flory, deceased, an extension of time for waiving the pecuniary provisions made for her in her husband's will. An appeal was taken from the decision by the executor of the estate to the Rutland county court. In the latter court the widow moved to dismiss the appeal, on the ground that the executor had no such interest in the estate as is essential by statute to the right of appeal; that the executor's appeal raised the question of jurisdiction in the county court, for, if the appeal was not within the right of the executor by statute, it could not give that court jurisdiction. The motion was denied, and the widow excepted. Thereupon the cause was passed to the Supreme Court under the statute before final judgment. The question being raised by motion to dismiss, it must be determined on what appears of record. Tracy v. Grand Trunk Ry. Co., 76 Vt. 313, 57 A. 104.

The petition of the executor praying for an appeal sets forth that he is the duly qualified executor of the last will and testament of Adolphus Flory, deceased, "and as such executor is interested in his estate." That "as executor" he "objects to the judgment and order of the said court on the ground that said widow was barred by the statute of limitations, and that such judgment and order was contrary and against the weight of the evidence." The record contains nothing showing or alleging that Pelkey has any interest in the estate as an individual, or otherwise than in his representative capacity as' executor. In such capacity he has no legal right or liability affected by the decree and judgment from which the appeal was attempted to be taken. He therefore had no right of appeal under the statute, and his attempt in this respect could give the county court no jurisdiction of the matter. The denial of the motion to dismiss was error. In re Vincent's Estate, 84 Vt. 89, 78 A. 714; Peck's Adm'r v. Peck's Adm'r, 91...