In re Estate of Margaret E. Callahan
| Decision Date | 02 October 1945 |
| Parties | IN RE ESTATE OF MARGARET E. CALLAHAN |
| Court | Vermont Supreme Court |
Intervention in Pending Litigation.
1. An application to intervene in pending litigation is ordinarily regarded as addressed to the discretion of the Court, and, in the absence of an abuse or a withholding of such discretion the ruling thereon is not to be revised.
2. But such ruling is revisable where the applicant has such a direct and immediate interest in the res which is the subject matter of the litigation that intervention is necessary for the preservation of his rights.
3. Where the applicant to intervene in the matter of an administration account shows that she had a lien upon a share in the estate which would be lost if she were refused the privilege of intervening to protect her interest, it was held that the refusal of the trial court to permit her to intervene should be reversed.
4. An application to intervene in a probate proceeding is not barred because it is not made until after the cause has been appealed to the County Court by one of the original parties.
5. Exceptions taken to findings of fact by one not a party to the litigation are not available on review.
APPEAL from Probate Court, District of Rutland. Helen T. Fewkes applied for leave to intervene, which application was denied. Hearing by court, Rutland County Court, March Term, 1944 Black, J., presiding. Reversed and remanded.
Judgment reversed and cause remanded.
Lindley S. Squires for the intervenor.
Lawrence & O'Brien for the executor.
Asa S. Bloomer for Daniel J. Callahan et al.
Present MOULTON, C. J., SHERBURNE, BUTTLES, STURTEVANT and JEFFORDS JJ.
Margaret E. Callahan, a widow, died testate in January, 1937, and left surviving her five children, Margaret, Daniel, Francis, Anna and Thomas. When her executor filed his final account in the Probate Court, he listed as an asset of the estate a claim against Francis for board, room and washing furnished to him by his mother and her estate from June 6, 1934, to May 1, 1937, amounting to $ 2011.32. The Probate Court disallowed this item, and also another concerning a credit of $ 250. for loss on certain furniture inventoried at $ 300. which had been divided among the heirs with the consent of the executor. The executor appealed to the County Court, and a hearing was had at the March Term, 1944, at which only Margaret and Daniel entered appearances as appellees. Findings of fact were filed and it was adjudged that Francis was indebted to the estate in the sum above mentioned, which debt was an asset of the estate, and should be allowed as such. As to the furniture, the court found that the true value of it was $ 50. and that the credit of $ 250. should be allowed. No exceptions were taken, either by the executor or by the heirs-appellees.
While the cause was pending in County Court, after the appeal from the Probate Court had been entered therein, Helen T. Fewkes applied for leave to intervene, alleging that she had been granted a divorce from Francis Callahan in 1935; that, on September 14, 1937, the County Court made an order against him for the support of his minor children, which was made a lien upon his interest in his mother's estate; that the order had not been complied with and the arrears amounted to about $ 1700.; that if the executor's account should be allowed nothing would be due her former husband; and that the interests of the parties to the appeal were hostile to her own. The application was denied upon the ground that, taking the allegations contained therein as true, she had no legal right to enter as a party.
The right to intervene in pending litigation is governed by statute in many jurisdictions. See cas. cit. annotation 23 L.R.A. (n.s.) 536. In the absence of legislative enactment in this State, the application is ordinarily regarded as addressed to the discretion of the court. March v Beckman, 98 Vt. 293, 296, 127 A. 296. As in other matters of this kind the ruling thereon is not to be revised in the absence of proof that the Court's discretion has been abused or withheld. But there are cases where the would be intervenor has such a direct and immediate interest in the res which is the subject of the suit and where intervention is so necessary to the preservation of his rights that a denial of it is reviewable by the appellate court. United States v. California Cooperative Canneries, 279 U.S. 553, 556, 49 S.Ct. 423, 424, 73 L.Ed. 838; Vertner v. Vertner63 App. D.C. 179, 70 F.2d 783, 784; United States v. Radice, 40 F.2d 445, 446; Real Estate Land Title and Trust Co. v. West Chester St. Ry. Co., 299 Pa. 76, 149 A. 84. ...
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