In re Everett's Estate
| Citation | 23 A.2d 202,112 Vt. 252 |
| Decision Date | 04 November 1941 |
| Docket Number | No. 124.,124. |
| Parties | In re EVERETT'S ESTATE. |
| Court | United States State Supreme Court of Vermont |
Exceptions from Bennington County Court; O. B. Hughes, Presiding Judge.
Proceeding in the matter of the estate of Edward H. Everett, deceased, wherein Mary E. Turri appealed from a decree of probate court denying her petition to strike from the record and render void a previous decree approving the account of the executrix and administrator with will annexed. Appeal dismissed on motion, and Mary E. Turri brings exceptions.
Judgment reversed and cause remanded.
Argued before MOULTON, C. J., and SHERBURNE, BUTTLES, and STURTEVANT, JJ, and CUSHING, Sup. J.
McNamara & Larrow, of Burlington, for appellant.
Warren R. Austin, of Burlington, and George P. Lemm, of Washington, D. C, for executrix and administrator.
The appellant, Mary Everett Turri, is one of the heirs at law of Edward H. Everett, deceased, and a legatee named in his will. She appealed from an order of the Probate Court denying her petition to strike from the record and render void a previous decree approving the account of the executrix and the administrator, C. T. A, but her appeal was dismissed on motion in the county court, and the cause is here upon her exceptions.
The ground of the motion to dismiss is that the appellant has not given a satisfactory bond on appeal as required by P. L. 3010. The instrument as filed was signed and sealed in the name of the appellant as principal by Deane C. Davis and Joseph A. McNamara, her attorneys in fact, and Davis and McNamara also signed and sealed it as sureties in their individual capacities, acknowledging themselves bound jointly and severally. Their claimed authority to execute a bond in the name of the appellant appears of record and is a power of attorney signed by the appellant in Florence, Italy, and acknowledged by her before a Vice Consul of the United States, but is without a seal.
A motion to dismiss challenges only what appears of record, and does not reach defects that require extrinsic proof to establish. Capital Savings Bank & Trust Co. v. Hammett, 95 Vt. 47, 49, 112 A. 360; Stevens v. Bowker, 93 Vt. 480, 482, 108 A. 347; Tracy v. Grand Trunk Ry. Co., 76 Vt. 313, 318, 57 A. 104; Arel v. Centebar, 73 Vt. 238, 239, 50 A. 1064; Cunningham v. Caldbeck, 63 Vt. 91, 94, 20 A. 974; Johnson v. Williams, 48 Vt. 565, 569; Bliss, Adm'r v. Smith, 42 Vt. 198, 199; Connecticut & Pass. Rivers R. R. Co. v. Bailey, 24 Vt. 465, 472, 58 Am.Dec. 181; Culver v. Balch, 23 Vt. 618, 620. P.L. 3010 provides that "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." This statute is mandatory, and if the record shows that the required bond has not been given, a motion to dismiss the appeal must be granted. Lambert v. Merrill's Estate, 56 Vt. 464, 466; In re Bodwell, 66 Vt. 231, 233, 28 A. 989; Arnold v. Brook's Estate, Waldo, Adm'r, 36 Vt. 204, 208.
In providing that a bond shall be given, the statute imports that the instrument must be under seal. Without a seal it can not have the qualities which attach to a bond. Denton & Smith v. Adams, 6 Vt. 40, 42; Barnet v. Abbott, 53 Vt. 120, 129; Mahoney v. United States Shipping Board, etc., Corp., 253 Mass. 234, 148 N.E. 454, 455; In re Contest of Election of Burns, 315 Pa. 23, 171 A. 888, 890; City of Providence v. Goldenberg, 44 R.I. 327, 117 A. 225, 227. And according to the common law it is "the ancient but still vital principle that authority to sign a sealed instrument must be given under seal." Alfano v. Donnelly, 285 Mass. 554, 189 N.E. 610, 612.
However, the power of attorney here in issue was executed in the Kingdom of Italy. Nothing appearing to the contrary, the ordinary rule that the law of the place where a contract is made is to govern its validity, interpretation and construction, applies. Vermont Mutual Fire Ins. Co. v. Van Dyke, 105 Vt. 257, 259, 165 A. 906; 2 Beale, Conflict of Laws, § 332.4. "So the...
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In Re Watkins' Estate.
...The giving of a bond is a peremptory requirement of the statute and indispensable to the perfecting of an appeal. In re Everett's Estate, 112 Vt. 252, 254, 23 A.2d 202; Arnold v. Brook's Estate, supra. The bond must be filed within the 20 days allowed by P.L. 3005 for the taking of an appea......
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