In re Curtis' Estate

• Decision Date: 04 May 1937
• Docket Number: No. 56.,56.
• Citation: 192 A. 13
• Parties: In re CURTIS' ESTATE.
• Court: Vermont Supreme Court

192 A. 13

In re CURTIS' ESTATE.

No. 56.

Supreme Court of Vermont. Addison.

May 4, 1937.

Exceptions from Addison County Court; Olin M. Jeffords, Judge.

Proceeding in the matter of the estate of William H. Curtis, deceased, on the petition of Jessie Schenck and Arthur Tappan, against Millard F. Barnes, administrator de bonis non cum testamento annexo of the estate of Helen J. Curtis, deceased. The administrator was ordered to account, and he brings exceptions.

Affirmed, and cause remanded.

Argued before POWERS, C. J., and SLACK, MOULTON, SHERBURNE, and BUTTLES, JJ.

Edwin W. Lawrence, of Rutland, and Wayne C. Bosworth, of Middlebury, for appellant. George W. Stone, of Vergennes, and Marvelle C. Webber and James P. Leamy, both of Rutland, for appellees.

MOULTON, Justice.

William H. Curtis died testate on April 21, 1921. His will made the following disposition of his property: He gave to his widow, Helen J. Curtis, the use and income of his estate for life, with full right, power, and authority to use so much of the principal as might, in her judgment, be necessary for her suitable support, maintenance, and comfort. Upon her death, he bequeathed an undivided one-half of the residue to his sister, Jessie Schenck, free and clear of the marital rights of her husband, "to her and her children and the survivor or survivors of them forever"; and an undivided one-half to his nephew, Arthur Tappan, if then living, but if not living at the death of Helen, then his share, after deducting a trust fund for the testator's sister, Emily Tenbroke, if living, to Tappan's children "and the survivor of them and their heirs forever." The widow was named as executrix, and the will was probated in the probate court for the district of Addison. The executrix' account, filed October 7, 1922, showed a balance of $11,656.50, after paying debts and funeral and administrative expenses, all the assets so represented being notes, corporate stock, and cash. On the same day a decree of distribution was entered, the material parts of which are these: The estate was decreed "to Helen J. Curtis, his widow, with the full right, power and authority to use as much of the principal of the same as may be in her judgment necessary for her suitable support and maintenance and comfort. So much of the said principal as may remain, if any * * * at the decease of the said widow, Helen J. Curtis * * * is decreed as follows: An undivided one-half of the same, if any, less collateral inheritance tax, to Jessie Schenck sister of the testator to her and her children and the survivor or survivors of them forever, free and clear from the marital rights of the husband of the said Jessie Schenck, as her sole and separate estate * * * The other undivided one-half * * * is decreed, less collateral inheritance tax, to said testator's nephew Arthur Tappan * * * if he shall be living at the decease of the said widow, Helen J. Curtis; but if he shall not then be living, and testator's sister Emily Tenbroke shall then be living, the sum of $500. less collateral inheritance tax, is decreed to said Emily Tenbroke, which sum shall be placed in the hands of some suitable person by the Probate Court for the District of Addison, as a trust fund to be used to defray the expenses of giving to said sister of the testator suitable and proper burial * * * The residue of said undivided one-half of said estate, in case the said Arthur Tappan shall not be living at the decease of the said widow, Helen J. Curtis, is decreed, less collateral inheritance tax * * * to the children of the said Arthur Tappan and the survivor or survivors of them and their heirs forever * * * At this time a direct inheritance tax of $16.73 is ordered to be paid by the executrix to the Treasurer of the State of Vermont, out of the said cash on hand, and the same is to be credited on the future computation of the collateral inheritance tax, if any, that may be due to the Treasurer of the State of Vermont, upon the decease of the said Helen J. Curtis. The payment of such collateral inheritance tax is hereby authorized to be deferred during the life of the said Helen J. Curtis by reason of the fact that she is given full power to use from the principal of the estate."

After the filing of the foregoing decree, Helen J. Curtis took to herself the assets of the estate and commingled the same with her own property. She died December 10, 1934, leaving a will by which she distributed her estate among her brothers and sisters, and nephews and nieces. Since she had removed from her former place of residence, her will was admitted to probate by the probate court for the district of New Haven. The executor named in the will died soon after his appointment, and Millard F. Barnes was appointed administrator d. b. n. c. t. a. The inventory of the estate showed assets of $11,462.86, all cash on deposit in various banks.

On June 26, 1935, the Addison County Trust Company was appointed administrator d. b. n. c. t. a. of the estate of William H. Curtis, by the probate court for the district of Addison. Jessie Schenck and Arthur Tappan (both of whom had survived Mrs. Curtis) brought their petition to that court, asking that Barnes be required to account for the residue of the estate of William H. Curtis in the possession of Helen J. Curtis at the time of her death, and pay the same over to the Addison County Trust Company, Curtis' administrator. An accounting was ordered with a decree requiring payment of $6,988.08. An appeal was taken to the county court, and the Addison County Trust Company joined in the petition as party plaintiff.

In county court Barnes filed an answer in which he alleged (1) that the decree of distribution of October 7, 1922, was final, that William H. Curtis' estate was fully administered, and that neither Mrs. Curtis as executrix of her husband's estate, nor he, as her administrator, had any assets of the estate in possession; and (2) that the probate court for the district of Addison was without jurisdiction of the petition, since Mrs. Curtis' estate was in process of...