In re Estate of Woolley

• Decision Date: 02 May 1922
• Citation: 117 A. 370,96 Vt. 60
• Parties: IN RE ESTATE OF HENRY WOOLLEY, GEORGE PAGE, APPELLANT
• Court: Vermont Supreme Court

117 A. 370

96 Vt. 60

IN RE ESTATE OF HENRY WOOLLEY, GEORGE PAGE, APPELLANT

Supreme Court of Vermont

May 2, 1922

Special Term at Brattleboro, February, 1922.

APPEAL from a decree of the probate court for the district of Westminster, directing the executor of the will of Henry Woolley, deceased, to pay to Mary Page Woolley, testate's widow, her distributive share of her husband's estate. Trial by court at the September Term, Windham County, Fish J., presiding. Judgment affirming the decree of the probate court. The appellant excepted. The opinion states the case.

Judgment affirmed. To be certified to the probate court.

George A. Weston for appellant.

Stickney Sargent & Skeels for appellee.

Present WATSON, C. J., POWERS, TAYLOR, MILES, and SLACK, JJ.

OPINION

SLACK

This is an appeal from the decree of the probate court for the district of Westminster, directing the executor of the will of Henry Woolley, deceased, to pay to the testate's widow the sum of two thousand dollars as part of her distributive share of her husband's estate, in addition to the homestead. The court below, after hearing on the merits, affirmed the decree of the probate court with costs, and the case is here on appellant's exceptions.

The main question in the case is whether the probate court has authority under G. L. 3405, subd. III, to allow the widow to waive the provisions of her husband's will more than eight months after such will is proved, no application for further time in which to waive having been made within the eight months. Unless that court has such authority the attempted waiver, presently to be noticed, was of no effect and, consequently, the judgment appealed from is void, because that judgment cannot be sustained unless the widow had authority to, and did, waive the will. The existence of such authority is denied by appellant and affirmed by the appellee, Mary Page Woolley, the widow. She insists, however, that this question has been adjudicated and is not open for our consideration. To determine the latter question it is necessary to notice the facts upon which she bases this claim. In substance they are these: The will was proved February 5, 1916. The persons interested therein appear to have acted under its provisions until July 10, 1920, when upon application for that purpose, the probate court granted the executor a license to sell a part of the real estate of which the widow was given the life use. On July 30, 1920, she applied to the probate court, in writing, for further time in which to waive the provisions of the will, and on October 16, following, after due notice and hearing, the application was granted and she was given until November 1, 1920, in which to elect. That order was not appealed from. On October 26, 1920, by notice in writing that day filed and recorded in the probate court, the widow notified that court of her election to waive the provisions of the will, etc. December 16, 1920, the appellant herein, and others, joined in a petition to the probate court, praying that the order allowing the widow further time in which to elect be set aside, that the decree of the court receiving and directing the written waiver of the widow to be recorded be revoked, and that the waiver be expunged from the records, on the ground, among others, that the widow did not within eight months after the will was proved, waive its provisions or apply for further time in which to waive. After due notice of this petition, and an extended hearing on the merits, the probate court, on February 7, 1921, adjudged that the prayer of the petition be denied and the petition dismissed. That judgment was not appealed from.

It thus appears that the widow's right to waive in the circumstances has been twice passed upon by the probate court, and if that court had authority to act in the matter its judgment in the premises, unappealed from, is conclusive, and cannot be successfully attacked in these proceedings. In re Wells' Estate, 69 Vt. 388, 38 A. 83; Lawrence v. Englesby, 24 Vt. 42; Tryon's Admr. v. Tryon, 16 Vt. 313; Sparhawk v. Buell's Admr., 9 Vt. 41. On the other hand, if that court lacked authority to make the order in question for the reason that the application therefor was not made within eight months after the will was proved, the order is void.

Generally speaking, when a court has jurisdiction of the parties and the subject-matter its judgment and decrees, however erroneous, cannot be impeached in a collateral proceeding. But to effect this result, the court must have authority to render the particular judgment or decree that is assailed; or, in other words, orders or judgments which the court has not the power under any circumstances to make or render are void, and their nullity can be asserted in any collateral proceeding where they are relied on in support of a claim. Hendrick v. Cleaveland, 2 Vt. 329; Probate Court v. Winch et al., 57 Vt. 282; In re Harris, 68 Vt. 243, 35 A. 55; In re Turner, 92 Vt. 210, 102 A. 943. This lack of authority to make or render a particular order or judgment is akin to lack of jurisdiction of the subject-matter.

In the instant case the probate court had jurisdiction of the parties and, generally speaking, of the subject-matter, that is, it had jurisdiction of the settlement and distribution of the estates of deceased persons; but, did it, in the circumstances, have authority to make the order complained of? If we follow the construction given by this Court to the statute in force when Hathaway v. Hathaway, 44 Vt. 658, was decided, this question must be answered in the affirmative.

That was a proceeding to set...