In re Estate of Harris R. Watkins

• Decision Date: 03 October 1944
• Citation: In re Estate of Harris R. Watkins, 41 A.2d 180, 114 Vt. 109 (Vt. 1944)
• Parties: IN RE ESTATE OF HARRIS R. WATKINS
• Court: Vermont Supreme Court

41 A.2d 180

114 Vt. 109

IN RE ESTATE OF HARRIS R. WATKINS

Supreme Court of Vermont

October 3, 1944

May Term, 1944.

Reargued at January Term, 1945, Opinion on reargument filed February 6, 1945.

Status of an Executor De Son Tort.

1. Construction of a statute which leads to absurd consequences must always be avoided, if possible.

2. Construction of a statute under which an adherence to the strict letter of the statute or to the literal import of the words would lead to injustice is to be avoided, if possible.

3. The giving of a bond is a peremptory requirement and indispensable to the perfecting of a probate appeal.

4. Where a statute requires a satisfactory bond as a condition of taking an appeal, the use of the word "satisfactory" is a strong indication that the bond may be executed by some person other than the appellant.

5. The bond required by P. L. 3010 may be signed as principal by one other than the appealing party.

6. One who intermeddles with the affairs of an estate becomes its executor de son tort.

7. The fact that one has made himself an executor de son tort of an estate presents no reason for that person's appointment as its lawful administrator.

8. If one makes himself an executor de son tort, he subjects himself to the liabilities thereby accruing regardless of his innocence or mistake.

9. An administrator is a technical trustee.

10. The beneficiaries of an estate are entitled to have a person appointed administrator who will administer the estate fairly and impartially; no person should be so appointed whose personal interests conflict with and are adverse to those of the estate.

11. In determining whether a person against whom an estate has claims is fit to act as administrator, it is not necessary to show that such claims are valid claims; it is enough if they appear not to be sham, specious or wholly unfounded.

12. Where a statute gives to beneficiaries the right of having as administrator of an estate a person who is qualified to act fairly and impartially, such right is a primary right and must be respected, notwithstanding the fact that the statute gives a right of appeal from all decisions of the administrator.

13. The fact that a person has been appointed special administrator is not conclusive of the fitness of such person to act as general administrator.

14. The fact that a person is in general qualified and suitable to administer estates is not conclusive of the question whether such a person is qualified and suitable to administer a particular estate.

15. When the Supreme Court has all facts necessary for final decision except certain facts which the lower court should have, but failed to, find, it may use such facts in making final decision.

16. There is a distinction in applying the rule as regards the removal of an administrator and as regards the appointment of an administrator.

17. In the circumstances of the pending case, it is the dispute as to whether the appellee is indebted to the estate, and not the mere fact of indebtedness, which brings about diversity of interests and disqualification to act as administrator.

18. Equity will not relieve from a mistake which is wholly one of law.

19. The probate court possesses only a portion of equitable powers.

20. Comparison with another is not a proper test of suitability to serve as administrator.

21. In the circumstances shown, it would not be unfair and unjust to the executor de son tort to refuse to appoint him administrator; on the contrary, such appointment would result in unfairness and injustice to the beneficiaries.

22. A discretionary ruling of a court which deprives a party of a legal right is an abuse of discretion.

23. When an appeal to the county court from an order appointing an administrator has passed to the Supreme Court for decision of exceptions, remand is properly made to the probate court rather than to the county court.

APPEAL FROM PROBATE COURT appointing administrator of an estate. Chittenden County Court, September Term, 1943, Cleary, J presiding. Upon exceptions to an order appointing Howard National Bank and Trust Company administrator the beneficiaries appealed to the Supreme Court. Reversed.

Judgment reversed, petition of the Howard National Bank and Trust Company to be appointed administrator d. b. n., c. t. a. of the estate of Harris R. Watkins dismissed with costs and to be certified to the probate court.

Guy M. Page and Joseph T. Stearns for the appellees.

Lawrence & O'Brien for the appellants.

Present: MOULTON, C. J., SHERBURNE, BUTTLES, STURTEVANT and JEFFORDS, JJ.

OPINION

JEFFORDS, J.

After the opinion was handed down in the case of In re Estate of Watkins, 113 Vt. 126, 30 A.2d 305, holding that the Howard National Bank and Trust Company (hereinafter called the Bank) did not by virtue of its consolidation with the City Trust Company succeed the latter as executor of the Watkins estate, the Bank petitioned the probate court to be appointed administrator, d.b.n., c.t.a. of that estate. This petition was opposed by those entitled to take under the Watkins will, hereinafter called the beneficiaries, who asked for the appointment of the Rutland Trust Company, or some other suitable person, to that office.

A hearing was had before the probate court which found that the Bank was a suitable person within the meaning of the statute, P. L. 2784, and ordered that the Bank, upon filing a bond in a specified amount, be appointed such administrator. An appeal was taken by the beneficiaries to this order and a hearing was had in the Chittenden County Court. That court found that the Rutland Trust Company is a suitable person to administer the estate. It also stated in finding No. 25 that: "After careful deliberation and consideration of all the evidence, the objections and all the requests for findings, we find that the appellee (the Bank) is a suitable person to administer the estate and we are convinced and find that in justice and fairness the appellee is a more suitable person to administer the estate than the Rutland Trust Company." A. judgment was entered affirming the order of the probate court and appointing the Bank administrator d.b.n., c.t.a. of the Watkins estate. The case is here on various exceptions taken by the beneficiaries.

The first matter for our consideration is the claim made by the Bank that no valid appeal was taken from the order of the probate court for that no bond was given as required by P. L. Sec. 3010 which reads as follows:

"Before an appeal is allowed the person appealing shall give a satisfactory bond to the court, conditioned that he will prosecute the appeal to effect and pay the intervening damages and costs occasioned by such appeal."

The Bank filed a motion in the county court to dismiss the appeal on the ground that none of the persons appealing gave the bond in question. This motion was denied. The Bank has filed no bill of exceptions so the beneficiaries say that the ruling below has become res adjudicata. The Bank claims the contrary and says as this question involves a claim of lack of jurisdiction of the subject matter it can properly be raised here in spite of the absence of a bill of exceptions on its part. Passing over this claim of the beneficiaries we will proceed to determine whether the bond as given sufficiently complies with the statute.

The bond is in the amount of $ 250.00 and is signed and sealed by Edwin W. Lawrence as principal and Harold I. O'Brien as surety. It contained the condition that if the parties appealing, naming them, shall prosecute the appeal to effect, and pay all intervening damages and costs occasioned by the appeal, the obligation of the bond to be void, otherwise to be and remain in full force.

The bond was apparently satisfactory to the probate court as the judge signed the citation on appeal with the form of the same altered somewhat and ordered the appeal be allowed and notice of it given. This change in the form was made by inserting the words "by their attorney" after the printed word "appellants" so it appears that the appellants by their attorney as principal have filed a bond, etc.

The Bank claims that the word "give" appearing in P. L. 3010 must be taken to mean execute and deliver so it must follow that the statute requires the person appealing to appear on the bond as principal. No cases have been shown us nor have we found any construing this statute on this point.

The statute in question first appears in the Acts of 1797 at page 24 where it is provided that the bond shall be in a reasonable sum with sufficient sureties. It was changed by the Acts of 1821, p. 33, Sec. 7 of ch. 7 by providing that an aggrieved person may appeal from an order of the probate court on giving bond to the satisfaction of that court. It is apparent that the Legislature intended by this change to broaden the discretionary powers of a probate court in respect to its approval of the appeal bond. This provision respecting the satisfaction of the court as to the bond has been continued in the statute down to the present time.

It is clear that the purpose of the statute is to effectuate an absolute security to the other parties to be affected by the appeal. Arnold v. Brooks Estate, 36 Vt 204, 207. Construction of a statute which leads to absurd consequences must always be avoided if possible. In re Swanton Market Area, 112 Vt. 285, 292, 23 A.2d 536; State Highway Board v. Gates, 110 Vt. 67, 72, 1 A.2d 825. And so, also, where an adherence to the strict letter of the statute, or to the literal import of the words, would lead to injustice. Brammall v. LaRose, 105 Vt. 345, 350, 165 A. 916. The giving of a bond is a peremptory requirement of the statute and indispensable to the perfecting...