In re Brace's Estate

• Decision Date: 01 February 1938
• Docket Number: 343B
• Parties: IN RE ESTATE OF LESTER G. BRACE, GEORGE BRACE ET AL., APTS. v. D. F. HULETT, ADMR
• Court: Vermont Supreme Court

196 A. 742

109 Vt. 360

IN RE ESTATE OF LESTER G. BRACE, GEORGE BRACE ET AL., APTS. v. D. F. HULETT, ADMR

No. 343B

Supreme Court of Vermont

February 1, 1938

January Term, 1938.

Jury Verdicts Advisory on Appeals from Allowance of Administration Account---Status on Review of Verdict Accepted by Court---Verdict as to Damages from Negligence in Sale of Estate Property Supported by Evidence---Verdict as Establishing Action Resisted without Just Cause---P. L. 2818 and 3017, Allowance of Costs in Administration Account Construed Together---Sections of Act to Be Harmonized--- Construction of Statute Where Provisions Inconsistent---Absurd Consequence to Be Avoided---Construction of Statute Adopted on Re-enactment---P. L. 3017 Controlled by P. L. 2818 as to Allowance of Costs in Administration Account---Administrator Held Personnally Liable for Costs---Motion During Trial to Strike out Items of Account Premature.

1. On appeal to county court from allowance of administrator's account, special verdicts of jury that defendant had negligently sold farm and sugar tools belonging to estate for unreasonably low sum and assessing damages therefor were merely advisory, since there is no constitutional nor statutory right to trial by jury in this type of appeal.

2. On such appeal, where finding of jury as to damages to estate resulting from alleged negligence of administrator is expressly accepted and approved by trial court, Supreme Court cannot overturn finding merely because evidence may preponderate against it and damages awarded be thought to be inadequate, but will interfere only if it appears from record that damages are grossly inadequate and that there is no reasonable basis therein for finding made.

3. On such appeal, where farm belonging to estate was on hill at end of road and had not been operated as farm for several years prior to decedent's death, where administrator made several efforts to sell farm over period of five years reducing price from time to time, and never received cash offer until one was made by purchaser, and where evidence was conflicting as to value of farm and sugar tools, and as to amount and value of timber on farm, held that there was sufficient evidence to sustain court and jury in finding made as to amount of damages as against claim of inadequacy.

4. On such appeal, though amount of damages found by jury to have resulted from negligence of administrator in selling farm and sugar tools belonging to estate was small in contrast with damages sought, verdict when accepted by court established that administrator resisted appellants' demand without just cause within meaning of provision of P. L. 2818 that costs awarded against administrator shall be allowed in administration account unless it appears that action or proceeding was prosecuted or resisted without just cause.

5. P. L. 2818 and P. L. 3017 are sufficiently cognate to be in pari materia, since they both relate to allowance of costs taxed against administrator in his administration account, and they are to be construed with reference to each other as parts of one system, and legislative intent, thus ascertained, must be given effect.

6. Different sections of same act which take effect at same time should be harmonized if it can be done reasonably.

7. When provisions of a law are inconsistent, effect must be given to those which harmonize with context and apparent intent of Legislature.

8. Since consequences and natural and reasonable effect of a proposed construction of a statute are to be considered in ascertaining legislative intention, construction leading to absurd consequence must always be avoided if possible.

9. Where statute that has been construed by courts has been re-enacted in same, or substantially same terms, Legislature is presumed to have been familiar with its construction and to have adopted it as part of law, unless it expressly provides for different construction.

10. Provision of P. L. 3017, thai costs taxed against executor or administrator shall be allowed to him in his administration account, is not to be construed literally, but is controlled by provision of P. L. 2818 that such costs shall be allowed unless it appears that action or proceeding in which they were taxed was prosecuted or resisted without just cause.

11. On appeal to county court from allowance of administrator's account, administrator was liable personally for appellants' taxable costs and was not entitled to credit therefor in his administration account, where jury found that estate had been damaged through negligence of administrator and court approved and accepted finding.

12. On such appeal, motion made during trial that items allowed in account for witness fees and subpoena and attorney fees on hearing in probate court on issue of administrator's negligence be stricken out and included in costs, was premature and properly overruled, since propriety of such allowance could not be determined until issue of negligence had been decided.

APPEAL IN PROBATE. From allowance of final administration account by probate court appeal was taken by the decedent's heirs to Chittenden county court. Trial by jury at the March Term 1936, Chittenden County, Shields, J., presiding. Special verdicts for the appellants were accepted by the court and the administrator's account was amended, and allowed as amended, to be certified to the probate court. The appellants excepted to denial of motion to set aside verdict with respect to damages alone as being inadequate and to allowance of costs in administration account. The opinion states the case.

Judgment reversed, and judgment that the account as allowed by the probate court be amended by charging the administrator with the additional sum of $ 25. To be certified to the probate court. Let the appellants recover their costs in this Court, also their costs in the county court taxed at $ 75.98.

Harold J. Arthur for the appellants.

J. H. Macomber and J. H. Macomber, Jr., for the defendant administrator.

Present: POWERS, C. J., SLACK, MOULTON, SHERBURNE and BUTTLES, JJ.

OPINION

SHERBURNE

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, Admx. 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...