In Re Callahan's Estate.

• Decision Date: 06 May 1947
• Docket Number: No. 1065.,1065.
• Citation: 52 A.2d 880
• Court: Vermont Supreme Court
• Parties: In re CALLAHAN'S ESTATE.

52 A.2d 880

In re CALLAHAN'S ESTATE.

No. 1065.

Supreme Court of Vermont.

May 6, 1947.

Exceptions from Rutland County Court; Hughes, Judge.

Proceeding in the matter of the estate of Margaret E. Callahan, deceased, wherein Charles J. O'Rourke was appointed executor of the estate, and wherein Helen T. Fewkes intervened, alleging that she had been granted a divorce from one of the beneficiaries of the deceased's will, that there was alimony due her from such beneficiary, and that the intervenor should be allowed weekly sums payable from that beneficiary's interest in deceased's estate. To review a judgment in favor of the intervener, the executor and Margaret O'Rourke bring exceptions.

Judgment reversed and cause remanded.

Asa S. Bloomer, of Rutland, for Callahan heirs.

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

Lindley S. Squires, of Rutland, for intervener.

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

STURTEVANT, Justice.

Margaret E. Callahan, a widow, died testate in January, 1937, in the city of Rutland, where she had lived all her life. She left three sons, Daniel, Francis and Thomas, and two daughters, Margaret and Anna, surviving her. Margaret's husband, Charles J. O'Rourke, is the duly appointed and qualified executor of Margaret E. Callahan's estate. After directing payment of her debts, funeral expenses and expense of administration, the testatrix devised and bequeathed all her property, both real and personal, in equal shares to her above named five children. When the executor filed his final account in probate court, he listed as an asset of the estate an account 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 $2,011.32, including interest to that time. The probate court disallowed that item and also an item claimed as a credit for loss on sale of furniture in the sum of $250. The executor appealed to county court from the disallowance of these items in his account and a hearing was had at the March Term, 1944, at which only Margaret and Daniel entered as appellees. Findings of fact were made and filed and it was adjudged that Francis was indebted to the estate in the amount as above mentioned, which debt was an asset of the estate and should be allowed as such. Agreement has been reached as to the furniture item and therefore we give it no further attention.

While the cause was pending in county court, 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 their minor children which was made a lien upon his interest in his mother's estate, that the order had not been complied with and was then in arrears in the amount of about $1,700; that if the executor's account should be allowed, nothing would be due from the estate to 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 therein contained as true, she had no legal right to enter as a party. Upon appeal to this Court, this holding and the judgment were reversed and the cause was remanded. See In re Callahan's Estate, 114 Vt. 252, 44 A.2d 162.

At the second trial the court submitted two questions to the jury, viz., should the note for $579.48 given by Francis to his mother be allowed as an asset of the estate in the executor's account and also should the bill against Francis for board, room and washing in the sum of $2,011.32 be so allowed? The jury answered the first question in the affirmative and the latter in the negative. The case is here upon exceptions by the executor and the appellee, Margaret O'Rourke, Daniel having deceased since the last trial. The appellants here are the executor and Margaret and hereinafter will be so designated.

The appellants made the claim below that the evidence offered by the intervenor failed to show that she had a lien as claimed by her but on the contrary showed affirmatively that she had no such lien because the county court was without jurisdiction to make the order in question. We first consider the question raised by exceptions to the ruling that the intervenor had a lien as claimed by her.

The intervenor contends that the petition which she brought to the county court dated July 23, 1937, and filed with the clerk of the court on August 24, 1937, gave that court jurisdiction to order the lien in question, because property belonging to Francis in this state, viz., his interest in his mother's estate, was thereby brought before, and within the control of, the court. Francis was then residing at East Hartford, Connecticut, where service was made on him in accordance with the statutory provisions for notice to and service on a non-resident defendant. He has not resided in Vermont since that time and was not served with process in this state and did not appear in those proceedings. The petition, omitting the caption, prayer for citation, date and signature, is as follows.

‘To the Rutland County Court, Comes Helen T. Fewkes, of the City of Rutland, County of Rutland and State of Vermont, and respectfully represents:

‘That at the March term, 1935, of Rutland County Court, she was granted a bill of divorce from Francis S. Callahan, which divorce became absolute on the 3rd day of November, 1935;

‘That there are two minor children of the parties, to wit:

‘Helen C. Callahan, born November 13, 1928, and

‘Francis S. Callahan, born December 13, 1930;

‘That since the granting of said divorce, petitionee has failed and neglected to furnish any assistance whatsoever in the care of said children;

‘That she has been informed that said Francis S. Callahan will receive certain proceeds, as an heir to the estate of his mother, Margaret E. Callahan, deceased;

‘That upon receipt of the proceeds from said estate, she believes that the said Francis S. Callahan will dispose of them to the disadvantage of said minor children and that no part of said proceeds will be used by said Francis S. Callahan for the support and maintenance of said minor children.

‘Wherefore, Your petitioner prays the Court to order said petitionee to pay to the petitioner such weekly sums of money, or such lump sum, from his inheritance from the estate of Margaret E. Callahan, or from his earnings, for the support of said minor children as to the court shall seem proper;

‘Your petitioner further prays:

‘2. That the Court will strictly enjoin and restrain the said Callahan from disposing, in any manner or form of the proceeds that he will obtain as his inheritance from the estate of Margaret E. Callahan or from disposing in any manner or form his rights, title or interest in and to his share of the proceeds from the said estate until an order is made and complied with concerning the maintenance and support of said minor children.’

P.L. 3163 under which the petition is brought states: ‘When a marriage is annulled or a divorce granted, and at any time thereafter, upon petition of either of the parents, the court may make such other or further decree as it deems expedient concerning the care, custody and maintenance of the minor children of the parties and may, on the petition of either of the parents, annul, vary or modify such order.’

Attached to the petition and served with it is a restraining order dated August 24, 1937, signed by a superior judge, ordering Francis not to dispose of his share of the proceeds of his mother's estate, until an order is made and complied with, concerning the support of his said minor children or until further order of court.

At the time the petition was brought, there was no order in force against Francis for the payment of money to the petitioner. After an ex parte hearing, the county court issued its judgment order on September 14, 1947. After reciting facts as set forth in the petition and other facts incident to the proceedings, the judgment order states as follows:

‘And whereas, on the 14th day of September, 1937, hearing on said application was held before Rutland County Court, said Callahan not appearing.

‘Therefore, it is ordered that said Francis S. Callahan shall pay to Helen T. Fewkes the sum of Five Dollars ($5.00) weekly, to be used for the support and maintenance of the minor children of the parties, said payments to commence on the 21st day of September, 1937, and continue until further order of the Court.

‘It is further ordered that a lien against such proceeds of the estate of Margaret E. Callahan as shall inure to the benefit of the said Francis S. Callahan is hereby created in accordance with the statute in such case made and provided and the said Francis S. Callahan is enjoined and restrained from conveying or removing from the State any of the proceeds that inure to his benefit from said estate.’

It is doubtless true that an order for the payment of alimony is in its nature personal and without personal service in the state where made or appearance of the petitionee is subject to the infirmities of an ex parte judgment, should its enforcement against the petitionee be sought in a foreign jurisdiction. However, if the proceeding is such that property of the petitionee in this state is thereby brought before the court and within its control, such order is valid to the extent of such property, though the court does not have jurisdiction of the person of the petitionee. Wilder v. Wilder, 93 Vt. 105, 106 A. 562; Noyes v. Noyes et al., 110 Vt. 511, 517, 9 A.2d 123; Prosser v. Warner, 47 Vt. 667, 19 Am.Rep. 132; Smith v. Smith, 74 Vt. 20, 51 A. 1060, 93 Am.St.Rep. 882; Pennoyer v. Neff, 95 U.S. 714, 24 L.Ed. 565; also see Annotations, 29 A.L.R. p. 1381 et seq.; 64 A.L.R. p. 1392 et seq.; 108 A.L.R. p. 1302 et seq.; 164 A.L.R. pages 354 and 355.

At the time of her decease the testatrix owned one parcel of...