In re Brace's Estate
| Decision Date | 01 February 1938 |
| Docket Number | No. 343b.,343b. |
| Citation | 196 A. 742 |
| Court | Vermont Supreme Court |
| Parties | In re BRACE'S ESTATE. BRACE et al. v. HULETT. |
Exceptions from Chittenden County Court; Charles A. Shields, Judge.
Proceedings in the matter of the estate of Lester G. Brace, deceased, wherein D. F. Hulett, as administrator, filed a final account for allowance, which was resisted by George Brace and others on ground that administrator had negligently damaged estate by selling part of it at an unreasonably low sum. From a judgment of the county court entered on an appeal from an order of the probate court allowing the final account, George Brace and others appeal.
Reversed and certified to probate court for further proceedings.
Argued before POWERS, C. J., and SLACK, MOULTON, SHERBURNE, and BUTTLES, JJ.
Harold J. Arthur, of Burlington, for appellants. J. H. Macomber, of Burlington, for appellee.
This is an appeal to the county court from the allowance of the defendant's final account as administrator by the probate court. The issues formally raised by the pleadings were submitted to a jury, which brought in special verdicts in favor of the appellants to the effect that the defendant had negligently sold the farm and sugar tools belonging to the estate for an unreasonably low sum, and that the estate was thereby damaged to the amount of $25. Three exceptions to the rulings of the county court are briefed.
The appellants moved to set aside the verdict with respect to damages alone for the reason that the damages were inadequate and inconsistent with the testimony, and excepted to the overruling of their motion. As there is no constitutional nor statutory right to a trial by jury in this type of an appeal, the verdicts were advisory merely. Eastern States, etc., League v. Estate of Vail, 97 Vt. 495, 513, 124 A. 568, 38 A.L.R. 845; In re Will of Smith, 88 Vt. 259, 273, 92 A. 223; In re Peck's Estate, 87 Vt. 194, 197, 198, 88 A. 568. We need not consider if the motion should have been so phrased as to ask the court not to accept the verdicts of the jury. Nor need we consider if the appellants were entitled to have the verdict set aside as to damages only under our holding in Parizo v. Wilson et al., 101 Vt. 514, 519-525, 144 A. 856.
We have here a finding of the jury expressly approved and accepted by the court. Under such circumstances we cannot overturn this finding merely because the evidence may preponderate against it and we may think the damages awarded inadequate and would have reached a different result had we been finding the facts. To warrant our interference it must appear to us from the record that the damages are grossly inadequate and that there is no reasonable basis therein for the finding made. Platt, Adm'x, v. Shields & Conant, 96 Vt. 257, 271, 272, 119 A. 520; Barrette v. Carr, 75 Vt. 425, 56 A. 93.
From a careful examination of the transcript, we are satisfied that there was sufficient evidence to sustain the court and jury in finding the amount of the damages to be only $25. The decedent died in March, 1930. The farm was back upon a hill at the end of the road and had not been operated as a farm for several years prior to decedent's death. It was what is commonly called an abandoned farm and was used only for sugaring purposes. The administrator, under a license from the probate court, made several efforts to sell the farm. He reduced the price from time to time but never received a cash offer until one was made by the purchaser in May, 1935. The best previous offer was from George Brace, one of the appellants, and was for over $150 less than the amount received, and was conditioned upon his ability to raise the money. The evidence was conflicting as to the value of the farm and sugar tools, separately and as a whole, as well as to such elements as the amount and value of the timber upon the farm. The evidence was such that the court or jury acting reasonably might have found that full value was received, or that some additional sum up to a maximum of several hundred dollars should have been received before making a sale.
The court charged the account of the administrator with the additional sum of $25, the amount by which the estate was damaged by his negligence, and taxed and allowed costs of $75.98 against the administrator and in favor of the appellants, and allowed these costs as a credit to the administrator in his account, stating that it did so in accordance with P.L. 2818. As thus amended the account was allowed, to be certified to the probate court. As a matter of discretion, in view of the finding of negligence, the court disallowed attorney fees to the administrator. To the allowance of the costs as a credit to the administrator in his account the appellants excepted upon the ground that the evidence and the jury's verdict indicated without question that the claim of the appellants was resisted without just cause.
P.L. 2818 reads as follows: "The amount paid by an administrator for costs awarded against him shall be allowed in his administration account, unless it appears that the action or proceeding in which the costs are taxed was prosecuted or resisted without just cause."
On account of the small amount of the verdict in contrast with the amount of damages sought, the court evidently thought that the administrator was justified in resisting the demand, yet it accepted the finding as to negligence and did not think that the administrator was entitled to attorney's fees. If this ruling is allowed to stand, the result will be that the appellants, as heirs, in fact will pay their own costs as the amount which they will receive from the estate will be diminished by the amount the administrator pays them as costs. Under the circumstances of this case we think that the court has taken an inconsistent position, as the verdict of the...
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