In Re Callahan's Estate. Application Of Fewkes.

• Court: Vermont Supreme Court
• Writing for the Court: MOULTON, C. J., and SHERBURNE, BUTTLES, STURTEVANT, and JEFFORDS, JJ.
• Citation: In Re Callahan's Estate. Application Of Fewkes., 114 Vt. 252, 44 A.2d 162 (Vt. 1945)
• Decision Date: 02 October 1945
• Docket Number: No. 1045.,1045.
• Parties: In re CALLAHAN'S ESTATE. Application of FEWKES.

44 A.2d 162

In re CALLAHAN'S ESTATE. Application of FEWKES.

No. 1045.

Supreme Court of Vermont.

Oct. 2, 1945.

Appeal from Rutland County Court; Henry F. Black, Presiding Judge.

Proceeding in the matter of the estate of Margaret E. Callahan, wherein the executor of the estate of Margaret E. Callahan appealed to county court from disallowance by probate court of a claim against an heir as an asset of the estate. While cause was pending in county court, Helen T. Fewkes applied for leave to intervene. The application was denied and Helen T. Fewkes appeals.

Reversed and remanded.

Lindley S. Squires, of Rutland, for intervenor.

Lawrence & O'Brien, of Rutland, for executor.

Asa S. Bloomer, of Rutland, for Daniel J. Callahan et al.

Before MOULTON, C. J., and SHERBURNE, BUTTLES, STURTEVANT, and JEFFORDS, JJ.

MOULTON, Chief Justice.

Margaret E. Callahan, a widow, died testate in January, 1937, and left surviving her five children-Margaret, Daniel, Francis, Anna and Thomas. When her executor filed his final account in the Probate Court, he listed as an asset of the estate a claim against Francis for board, room and washing furnished to him by his mother and her estate from June 6, 1934, to May 1, 1937, amounting to $2011.32. The Probate Court disallowed this item, and also another concerning a credit of $250 for loss on certain furniture inventoried at $300 which had been divided among the heirs with the consent of the executor. The executor appealed to the County Court, and a hearing was had at the March Term, 1944, at which only Margaret and Daniel entered appearances as appellees. Findings of fact were filed and it was adjudged that Francis was indebted to the estate in the sum above mentioned, which debt was an asset of the estate, and should be allowed as such. As to the furniture, the court found that the true value of it was $50 and that the credit of $250 should be allowed. No exceptions were taken, either by the executor or by the heirs-appellees.

While the cause was pending in County Court, after the appeal from the Probate Court had been entered therein, Helen T. Fewkes applied for leave to intervene, alleging that she had been granted a divorce from Francis Callahan in 1935; that, on September 14, 1937, the County Court made an order against him for the support of his minor children, which was made a lien upon his interest in his mother's estate; that the order had not been complied with and the arrears amounted to about $1700; that if the executor's account should be allowed nothing would be due her former husband; and that the interests of the parties to the appeal were hostile to her own. The application was denied upon the ground that, taking the allegations contained therein as true, she had no legal right to enter as a party.

The right to intervene in pending litigation is governed by statute in many jurisdictions. See cases cited annotation 23 L.R.A.,N.S., 536. In the absence of legislative enactment in this State, the application is ordinarily regarded as addressed to the discretion of the court. March v. Beckman, 98 Vt. 293, 296, 127 A. 296. As in other matters of this kind the ruling thereon is not to be revised in the absence of proof that the Court's discretion has been abused or withheld. But there are cases where the would be intervenor has such a direct and immediate interest in the res which is the subject of the suit and where intervention is so necessary to the preservation of his rights that a denial of it is reviewable by the appellate court. United States v. California Coop. Canneries, 279 U.S. 553, 556, 49 S.Ct. 423, 424, 73 L.Ed. 838; Vertner v. Vertner, 63 App.D.C. 179, 70 F.2d 783, 784; United States v. Radice, 2 Cir., 40 F.2d 445, 446; Real Estate Land Title & Trust Co. v. West Chester St. Ry. Co., 299 Pa. 76, 149 A. 84. ‘Cases of this sort are those where there is a fund in court undergoing administration, to which a third party asserts some right which will be lost in the event that he is not allowed to intervene before the fund is dissipated. In such cases an order denying leave to intervene is not discretionary * * *.’ Credits Commutation Co. v. United States, 8 Cir., 91 F. 570, 571, 573, 34 C.C.A. 12, 13, quoted with approval in the opinion on appeal, 177 U.S. 311, 316, 20 S.Ct. 636, 44 L.Ed. 782, 785. United States v. Radice, supra, is illustrative of the...