George J. Valiquette v. Henry G. Smith, Trustees

• Decision Date: 16 February 1936
• Parties: GEORGE J. VALIQUETTE v. HENRY G. SMITH ET AL., TRUSTEES
• Court: Vermont Supreme Court

183 A. 483

108 Vt. 121

GEORGE J. VALIQUETTE v. HENRY G. SMITH ET AL., TRUSTEES

Supreme Court of Vermont

February 16, 1936

January Term, 1936.

Appeal to County Court from Order of Probate Court Allowing Trustees' Account---Status of Finding as to Item Not Excepted to---Of Ground of Exception Not Stated Below---Excepting Party Confined to Precise Objection Made Below---Status of Grounds of Exception Not Briefed---Exception Held Waived by Concession on Argument and Failure to Brief---Character and Extent of Jurisdiction of County Court in Probate Appeals---Mode of Trial Therein Issues Made by Pleadings, Scope Limited or Enlarged by Counsel---Issues Made by Conduct of Counsel---Status of Statement of Claims of Parties Included in Findings, Effect of Exception Thereto---Findings Held to Be of Immaterial Facts, Court Having Refused Jurisdiction of Issue in Relation Thereto---Status of Exception to Findings of Immaterial Facts.

1. On appeal to county court from order of probate court approving trustees' account, where no exception was taken to finding of county court as to particular item, question as to its propriety is not properly before Supreme Court.

2. In such circumstances, ground of exception to allowance of an item, not stated in county court is not for consideration in Supreme Court.

3. In Supreme Court, an excepting party is confined to the precise objection made below, and questions raised for first time will not be considered.

4. Grounds of exception not briefed are waived.

5. On appeal to county court from allowance of trustees' account by probate court, where finding that item for trustees' services was fair and reasonable was excepted to on various grounds, and it was conceded on argument in Supreme Court that sum allowed was reasonable and the grounds of exception stated below were not briefed, the exception was waived both by the concession and by the failure to brief.

6. In the hearing of appeals, under the provisions of P. L. 3002 on matters originally within the jurisdiction of the probate court, the county court sits as a higher court of probate with coextensive jurisdiction; it is invested with the same authority and powers in all matters involved as the probate court originally had, proceeding in the same manner as if the case had originated in county court, and is not confined to the examination of the questions actually considered in probate court.

7. Trial in county court of appeal from probate court is to be conducted according to the recognized rules of procedure; any question of fact involved should be defined by proper allegations and replies and the court should try only the issues made by the pleadings, though counsel may by conduct or agreement limit or enlarge the issues so presented.

8. On trial in county court of appeals from allowance by probate court of trustees' account, where evidence was introduced by both parties on matters not specified in the motion for appeal, held that county court was justified in holding that such matters had been made issues and making findings in relation thereto.

9. Where trial court in its findings stated certain claims made by appellants, such statements were not findings of fact, and exception thereto raised no question for consideration in Supreme Court.

10. Where county court, on appeal from order of probate court allowing trustees' account, found that subject matter of allocation of certain items in previous accounts between principal and income was properly before the probate court when such accounts were before that court, that after due notice to the beneficiaries the probate court approved the allocation as made in the accounts, and that no appeal from such judgments was taken, but county court refused to take jurisdiction of the question of allocation, the issue was not before it and the findings were of immaterial facts.

11. Findings of immaterial facts do not constitute reversible error; they can be rejected without disturbing the judgment and exceptions thereto will not be considered by Supreme Court.

APPEAL to county court from order of probate court allowing annual account of trustees under will. Trial by court at the September Term, 1934, Rutland County, Sturtevant, J presiding. Judgment allowing the account. The appellants (beneficiaries) excepted. The opinion states the case. Affirmed.

Judgment affirmed. Let the result be certified to the probate court.

Bert H. Stickney (Frank S. Norcross, of Camden, N. J., George W. C. McCarter, of Newark, N. J., and Harlan E. Cecil, of New York City, of counsel), for the appellant.

Fenton, Wing & Morse for the appellees.

Present: SLACK, MOULTON, THOMPSON, and SHERBURNE, JJ., and BUTTLES, Supr. J.

OPINION

MOULTON

William H. Valiquette died testate on August 16, 1918. By his will and a codicil thereto two trusts were established, each comprising one-half of his residuary estate, one of which was for the benefit of his brother, George J. Valiquette, for life; and the other for the benefit of his sister, Hattie A. Olivette, for life and upon her death, for the benefit of his niece, Marie Olivette, for life. Hattie A. Olivette is now deceased, and Marie Olivette, who has married and bears the name of Marie Olivette Ditmars, has become the cestui que trust. The trustees named in the will were Henry G. Smith, Albert J. Boynton and Arthur H. Valiquette, and on July 15, 1919, they took possession of the trust estate and entered upon their duties. Mr. Boynton died in 1929, and since that time the surviving trustees have administered the trust. The trustees filed their account for the year ending December 31, 1933, with the probate court, which, after hearing, allowed it. George J. Valiquette appealed from the order of allowance to the county court. The stated grounds in the motion for appeal were (1) that the trustees had charged against the income for the year 1933 the sum of $ 120 for clerical work, and $ 750 for their services, which amounts were greatly in excess of the reasonable value of the clerical hire and services; (2) that one of the trustees ought to be discharged, because two were unnecessary; and (3) that the trustees had invested the trust fund in securities of unsound value, and in loans without adequate security.

Upon motion by the trustees, the allegations under (2) in the motion for appeal were expunged, because no petition for the removal of the trustees had been filed in the probate court, and the county court was without original jurisdiction to pass upon the matter. A declaration, filed by the appellant, which reiterated the claims made in the motion for appeal, was also expunged on the trustees' motion. No exception was taken to the granting of either motion. The county court then proceeded to hear the appeal, and, having filed a finding of facts, allowed the account as to each and all of the items therein, with costs to the trustees. The cause comes here on exceptions by the appellant, George J. Valiquette.

No exception was taken to the finding that the item of $ 120 for clerical assistance was fair and reasonable and properly chargeable in the account, and so the question of its propriety is not before us. Conn. Boston Co. v. Griswold, 104 Vt. 89, 98, 157 A. 57; Sparrow, Admr. v. Vermont Savings Bank, 96 Vt. 124, 130, 117 A. 667; Phillips v. Cutler, 91 Vt. 262, 265, 100 A. 40.

The trial court found that the sum of $ 750 was a fair and reasonable compensation for the services of the trustees for the year 1933, and allowed the item. Several exceptions were taken to this finding, as being unsupported by the evidence, and as being based upon other findings concerning various transactions in the administration of the trust, which, in turn, were claimed to be either unsupported by evidence, or immaterial. Upon argument in this Court, it was conceded that the amount of the compensation was not unreasonable and was not questioned, the claim that it was excessive being based upon the fact that during the year in question the trustees were dealing with the management, investment and conservation of the corpus of the trust as well as with the income derived therefrom, which services inured to the benefit of the remaindermen as well as to the benefit of the appellant, as life tenant, and consequently that the compensation should be, in part at least, charged to and deducted from the corpus of the estate.

But this objection was not made a ground of exception in the trial court, and therefore it is not for consideration here. Breding v. Champlain Marine & Realty Co., 106 Vt. 288, 294, 172 A. 625; Chase National Bank v. Healy, 103 Vt. 495, 500, 156 A. 396; Landry v. Hubert, 100 Vt. 268, 275, 137 A. 97. An excepting party is confined, in this Court, to the precise objection made below. Townshend v. Townshend, 84 Vt. 315, 318, 79 A. 388; Massucco v. Tomassi, 80 Vt. 186, 192, 67 A. 551; Foster's Exrs. v. Dickerson, 64 Vt. 233, 247, 24 A. 253; State v. Noakes, 70 Vt. 247, 257, 40 A. 249. We do not give attention to questions raised here for the first time. Bean v. Colton, 99 Vt. 45, 50, 130 A. 580. The exceptions, as taken, are waived, not only by the concession upon argument, but by the failure to brief them. People's Trust Co. v. Finn, 106 Vt. 345, 354, 175 A. 4; Mellen v. U. S. Health and Accident Ins. Co., 85 Vt. 305, 306, 82 A. 4; Gray v. Brattleboro Trust Co., 97 Vt. 270, 274, 122 A. 670.

At the beginning of the hearing in county court, counsel for the trustees sought to limit the issues to the items specified in the motion for appeal, i.e., the charges for services and clerical assistance. Objection was made by counsel for the appellant, who claimed the right to examine the trustees upon all matters connected with the account. It was then made to appear...