Harlacker v. Clark

• Decision Date: 03 January 1950
• Docket Number: No. 1232,1232
• Court: Vermont Supreme Court
• Parties: HARLACKER et al. v. CLARK et al.

Page 572

70 A.2d 572

116 Vt. 107

HARLACKER et al. v. CLARK et al.

No. 1232.

Supreme Court of Vermont.

Jan. 3, 1950.

Paul A. Bourdon, Woodstock, for plaintiffs.

Roland E. Stevens, White River Jct., for defendants.

Before SHERBURNE, C. J., and JEFFORDS, CLEARY, ADAMS and BLACKMER, JJ.

JEFFORDS, Justice.

After our decision in the above entitled case, reported in 115 Vt. 261, 56 A.2d 468, the probate court found that the net amount of the income which has accrued on the $10,000 trust fund amounted to $3,726.29 and it decreed this amount to Harlacker, administrator of the estate of Annie E. Burrows, and the heirs of her estate. It also decreed the sum of $10,000 to George C. Clark and Elizabeth Burrows as the heirs of Daniel W. Burrows. These findings and decree are dated March 11, 1949.

On March 29, 1949, Clark, as trustee of the $10,000 trust fund, moved to amend the decree. Four changes were asked for. At the time of the hearing on the motion three of the requested changes were withdrawn by the moving party, leaving only number 2 which reads as follows:

'By showing separately the amount of the income on the trust fund remaining unpaid by the trustee on the day of the death of Annie E. Burrows, the beneficiary, and the amount which accrued after her death as of March 11, 1949.'

On April 25, 1949, the requested amendment was denied and an exception to the ruling was allowed the trustee.

On May 12, 1949, Clark and Elizabeth Burrows declared in a writing filed in the probate court that they were 'aggrieved by said findings and decree' and appealed from the same to the Windsor County Court and they moved for an allowance of their appeal and filed a bond as required by the statute. On May 13, 1949, the appeal prayed for was allowed and an order of notice provided for.

The certificate of the judge of probate of the copies of the papers included in the application for the appeal states that the appeal is 'from the decree of distribution and order issued by said court.'

In the county court Harlacker filed a motion to dismiss the appeal. A hearing was had which resulted in a denial of the motion, with exceptions to the ruling, and the case was passed to this Court for hearing and determination of the exceptions before final judgment.

The motion to dismiss reaches only such defects as are apparent on the face of the papers which constitute the appeal. Fitzpatrick v. Taber, 99 Vt. 216, 218, 130 A. 587; Reynolds v. Conway, 61 Vt. 313, 17 A. 842. The only grounds assigned for such defects assume that the order on the motion to amend was the only ruling of the probate court appealed from. Assuming that this order was appealed from, it is not necessary, in our view of the case, later set forth, to determine whether any of such assigned grounds are valid. It is sufficient for present purposes to note that the decree would not have been altered in any material way if the motion to amend as it finally was presented had been granted. It would have been, in effect, a nunc pro tunc amendment and would merely have disclosed that the amount of the income on the trust fund remaining unpaid on the date of the death of the beneficiary was $2,538.38, as shown in our former opinion in this case, and known to be so by the attorney for Clark as shown by the record; and that the balance of the $3,726.29 fund had accrued since that time. The fund, as decreed, would not have been changed in its amount. Thus it is clear that no harm resulted to Clark by the denial of his motion to amend.

Sec. 3090, V. S.Rev.1947, under which the appeal was taken reads as follows: 'Except as otherwise provided, a person interested in an order, sentence, decree or denial of a probate court, who considers himself injured thereby, may appeal therefrom to the county court, if application in writing therefor is made and filed in the register's office within twenty days from the date of the decision appealed from.'

From the record it appears that the appeal from the order on the motion to amend was taken within the required twenty day period but it was not so taken to the decree of distribution. As we have already seen, the defendant was not harmed by the ruling on his motion. The real question here is the validity of his appeal from the decree.

The requirements of a valid appeal are statutory and the jurisdiction of the court to which the appeal is taken depends upon a compliance therewith and cannot be conferred by agreement or waiver express or implied. Holbrook Grocery Co. v. Com'r of Taxes, 115 Vt. 275, 282, 57 A.2d 118; Roddy v. Fitzgerald, 113 Vt. 472, 476, 35 A.2d 668. An appeal from a decision of the probate court must be taken within the time limited by the statute in order to be effective. Duprey v. Harrington, 103...