In re Cary's Estate

• Decision Date: 07 May 1908
• Citation: 81 Vt. 112,69 A. 736
• Parties: In re CARY'S ESTATE et al.
• Court: Vermont Supreme Court

69 A. 736

81 Vt. 112

In re CARY'S ESTATE et al.

Supreme Court of Vermont. Rutland.

May 7, 1908.

Exceptions from Rutland County Court; Alfred A. Hall, Judge.

Petition by Albert C. Davis and another against R. C. Abell and another for the settlement of the accounts of R. C. Abell as trustee and for the distribution to petitioners as remaindermen under the will of Theodore Cary, deceased. There was an appeal taken to the county court from a decree of the probate court dismissing the petition. The county court denied a motion to dismiss and Alonzo Fay excepts. Affirmed and remanded to county court.

The petition shows that other than the formal parts Theodore Cary's will contained three paragraphs; the first directing that his just debts be paid and discharged, the other two as follows:

"Secondly. It is my will and I give and bequeath to Alonzo Fay, my sister Asenath's son, the use and occupancy of my home place, the Birch hill pasture, the wood lot by Alden's and my six acre Creek Intervale, all my farming tools and all my cattle and stock on the premises above described during his natural life—he giving my sister, Rhoda Cary, a home with him on said place by her rendering him such assistance as she may be able to do from time to time during her natural life; and on the decease of said Alonzo it is my desire and I do hereby give and bequeath to the children of said Alonzo if any he have the property aforesaid in fee provide that my said sister Rhoda be cared for as aforesaid.

"Thirdly. What other property I shall have at my decease, such as provisions on hand, money, debts due, and if I purchase other real estate hereafter I desire to be equally divided between my said sister Asenath's two daughters to wit: Lucy Abbott and Elizabeth Davis that is to say, I give them the use of it during their natural lives and the remainder and reversion in fee to their children as in the case of said Alonzo, and in the case of the death of either of the said Alonzo, Lucy or Elizabeth then the share or shares of such deceased shall belong to the survivor or survivors of the other."

Further facts are shown by the petition as follows: Lucy Abbott and Elizabeth Davis named in the will are now dead, the latter dying first, leaving the petitioners, her only child and grandchild, surviving her, and that since her decease the said Lucy Abbott died without ever having any children of her own, but leaving the petitioners as the only surviving children of the two sisters, Elizabeth and Lucy. Alonzo is yet alive, and on notice appears in opposition to these proceedings. Whether he has children does not appear. The trustee appointed by the probate court of the Elizabeth Davis trust estate has paid over to the petitioners all of the trust funds in his hands and settled his final account with that court. The trustee, R. C. Abell, of the Lucy Abbott trust estate, though knowing of the death of said Lucy and of the terms of the will, has not settled or turned over his said trust estate to the petitioners nor communicated with them regarding it, but instead thereof, after an investigation made at their request, turned over to Alonzo the whole of said trust estate, without any notice to the petitioners, whereby they might appear before the probate court and be heard in the premises, before distribution by the trustee.

The petition further sets forth the claim of the petitioners as to the proper construction of the will in this respect, the rights and interests of the petitioners thereunder, as they claim them; that they are entitled either to the whole of said trust estate to the exclusion of Alonzo, or that with Alonzo they are entitled to an equal share of it, praying "that the said R. C. Abell and the said Alonzo Fay may be cited before said court to show cause, if any they have, why the said court should not decree the reversion and remainder in fee of the property of which said Lucy Abbott had the life use, or such part thereof as your petitioners are entitled to under and by virtue of the last will and testament of the said Theodore Cary to your petitioners, and to show cause, if any they have, why the said court should not decree and order them to pay over to your petitioners either the whole or a one-half part of the money and other property of which the said Lucy Abbott had the life use and which is now or has been formerly in their possession, care, and keeping"; and that on notice to all parties interested "the court do make its decree that the whole or a one-half part of the property of which Lucy Abbott had the life use * * * is the property absolutely of your petitioners, and that the said court shall further decree that the said R. C. Abell and the said Alonzo Fay shall pay or turn over to your petitioners, or their duly authorized attorney, said property."

On notice to all parties interested a hearing was had before the probate court, all parties being present or represented by counsel, "and thereupon the court, having listened to a statement of facts regarding which there was no dispute and to the arguments of the counsel, dismissed the said petition." An appeal was taken by the petitioners from this decree to the county court. The case being entered in the latter court, the defendant Alonzo Fay moved that the petition and appeal be dismissed for want of jurisdiction, which motion was overruled and exception by Alonzo. The defendant Abell moved that the petition and appeal be dismissed (1) because the county court had no appellate jurisdiction of said cause; (2) because it appears from the papers that there was no judgment order or decree of the probate court in which the petitioners are interested, have a right to complain, or from which they have a right to appeal. The motion was dismissed pro forma, to which Abell excepted.

Argued before ROWELL, C. J., and TYLER, MUNSON, and WATSON, JJ.

Chas. I. Button and Lawrence & Lawrence, for petitioners. Butler & Moloney, for defendant.

WATSON, J. The case is here on the motion to dismiss the petition. The grounds of the motion will be considered in their inverse order.

It appears from the will that Alonzo, Elizabeth, and Lucy were brother and sisters, children of the testator's sister Asenath. By the second paragraph of the will...