In re Estate of Edward H. Everett v. Turri

• Decision Date: 04 May 1943
• Parties: IN RE ESTATE OF EDWARD H. EVERETT, MARY E. TURRI, APPELLANT
• Court: Vermont Supreme Court

33 A.2d 223

113 Vt. 265

IN RE ESTATE OF EDWARD H. EVERETT, MARY E. TURRI, APPELLANT

Supreme Court of Vermont

May 4, 1943

February Term, 1943.

Jurisdiction of Probate Courts.

1. If a probate court does not have jurisdiction of a petition, the county court has none on appeal.

2. If the trial court is without jurisdiction of the subject matter of a suit, the Supreme Court is equally without jurisdiction and will dismiss the suit at any time of its own motion.

3. When two years have passed after the date of a decree of distribution in an estate before proceedings are brought to have the decree altered, there is a presumption that the estate has been distributed in accordance with the decree.

4. When a decree of distribution has been fully complied with by delivery of the estate to those entitled thereto, the probate court has no further jurisdiction of the assets thus distributed.

5. A decree allowing an account of an executor is not of as great conclusiveness as a decree of distribution, and may be revised on petition and notice as regards questions not passed upon in the original hearing.

6. Held, that in the circumstances the probate court was without jurisdiction of the petition.

7. It is within the plenary jurisdiction of a probate court to recognize an agreement made by all interested parties and a decree conforming to such agreement has the standing of a judgment by consent.

8. It is the better practice in making decrees of distribution to follow the provisions of the will, leaving any agreement for different disposition of the estate to be carried out between the parties who have made it.

APPEAL from an order of the Probate Court for the District of Bennington. Hearing by court, Bennington County Court December Term, 1942, Hughes, J., presiding. Passed to Supreme Court before final judgment. Judgment reversed and appeal dismissed.

The pro forma judgment is reversed and the appeal is dismissed. To be certified to the probate court for the District of Bennington.

McNamara & Larrow for the appellant.

Warren R. Austin and Collins M. Graves (E. Barton Chapin of counsel) for the estate.

Present MOULTON, C. J., SHERBURNE, BUTTLES and STURTEVANT, JJ., and CLEARY, Supr. J.

OPINION

MOULTON

After a prolonged, bitter and inconclusive litigation over the will of Edward H. Everett, who died on April 26, 1929, (See Everett v. Wing, 103 Vt. 488, 156 A. 393, cert. den. 284 U.S. 690, 52 S.Ct. 266 76 L.Ed. 582, and In re Everett's Will, 105 Vt. 291, 166 A. 827) all the parties in interest entered into an agreement of settlement, dated June 14, 1934, in accordance with which the will was allowed and admitted to probate, the executrix named by the testator received letters testamentary and an administrator c. t. a. was appointed to serve with her. Under date of June 18, 1936, after notice by publication, the Probate Court for the District of Bennington approved the final account of the executrix and the administrator c. t. a. and made a decree of distribution. No appeal was taken but on June 21, 1938, Mary E. Turri, a daughter and heir at law of the testator brought a petition to the Probate Court, asking that the decree should be declared void and stricken from the record and a hearing held wherein the correctness of the account should be reexamined. The petition was denied on December 18, 1939, and Mrs. Turri, hereinafter called the appellant, prayed for an appeal, which was allowed. The estate, represented by the executrix and administrator c. t. a., moved in County Court to dismiss the appeal on the ground that the bond furnished by the appellant was not such as is required by P. L. 3010. The motion was granted and the appellant brought the cause to this court on exceptions, with the result that the bond was held sufficient, the judgment below reversed and the cause remanded. In re Estate of Edward H. Everett, 112 Vt. 252, 23 A.2d 202.

After remand, the estate filed two more motions to dismiss the appeal, one on the ground that the appeal was not in accordance with the provisions of P. L. 3005, as construed in In re Walker Trust Estate, 112 Vt. 148, 22 A.2d 183; and the other on the grounds that the petition to the Probate Court was a petition for a new trial and was not brought within two years after the date of the decree as claimed to be required by P. L. 2108, and that the recognizance was not in accord with the requirements of P. L. 2114. These motions were denied, pro forma, and the cause passed to this court once more, upon exceptions by the estate, under the provisions of P. L. 2072.

There is, however, a preliminary question as to the jurisdiction of the Probate Court to entertain the petition in the first instance, for if it had none, the county court had none on appeal. Hodges's Adm'r v. Hodges's Est., 90 Vt. 214, 216, 97 A. 676; In re Parson's Est., 64 Vt. 193, 196, 23 A. 519. This issue has not been raised either here or below, but if the trial court was without jurisdiction of the subject matter we are equally without it, and where we find this to be the situation we do not wait for the claim to be made but dismiss the action on our own motion. Aguirre v. Aja, 113 Vt. 123, 30 A.2d 88, 89; Glass v. Newport Clothing Co., 110 Vt. 368, 373, 8 A.2d 651; Smith v. White Est., 108 Vt. 473, 480, 188 A. 901; Hunt v. Paquette, 102 Vt. 403, 404, 148 A. 752; Hinsman v. Marble Savings Bank, 100 Vt. 48, 50-1, 134 A. 635; Town of Barton v. Town of Sutton, 93 Vt. 102, 104, 106 A. 583; Fillmore, Admr. v. Morgan, Adm'x., 93 Vt. 491, 492, 108 A. 840; Miner's Ex'x v. Shanasy, 92 Vt. 110, 112, 102 A. 480.

The decree approved the account of the executrix and the administrator c. t. a. dated September 19, 1935, covering their proceedings for the previous year and also their final account; it ordered the establishment of a trust fund for the benefit of certain minor heirs at law, as provided for in the agreement of settlement; it ordered that the balance of cash on hand, after the payment of certain taxes on real estate, probate fees and fees of counsel and of the executrix and administrator c. t. a., should be held and used by the executrix and administrator c. t. a. for the further administration of the estate in Vermont and Ohio, and, upon the completion thereof, what remained should be accounted for to the Court; it recited that the inheritance tax imposed by the laws of Vermont upon the persons who were entitled to receive legacies or shares of the estate had been computed and paid; and it ordered distribution of the assets "in pursuance of the will.... and the agreement of settlement" to the several persons entitled to receive them.

The petition alleges that the published notice of hearing, as ordered by the court, mentioned only "the account of Executrix and Administrator c. t. a.," whereas three accounts were passed upon and approved,--the account covering the years from September 19, 1934, to September 19, 1936, the final account, and a summary of account from May 9, 1936, to June 18, 1936; that the decree purported to pass upon and allow certain amendments and additions to the final account which were not filed until July 6, 1936; that the fees provided by statute to be paid out of the estate were not computed, fixed or paid prior to the entry of the decree as required by law; that the inheritance taxes were fixed, allowed, and paid before the legacies and distributive shares of the persons entitled to receive them were ascertained; that the decree directed the payment of certain taxes on real estate in Ohio, which was not a claim against the estate; that the decree purported to distribute the estate pursuant to the terms of the agreement of settlement and not according to the will of the testator; and that the decree purported to convey certain assets to Grace Burnap Everett, as trustee, when in fact she was not a trustee as designated therein. For these reasons it is alleged that the decree should be declared void and stricken from the record.

While the record does not affirm that the decree of distribution has been complied with, a statement to this effect was made on hearing below, and in argument here by counsel for the estate, without contradiction. And in any event, we will assume it to be so, the contrary not appearing, from the length of time that has passed between the date of the decree, June 18, 1936, and the bringing of the petition, June...