In re George S. Walker Trust Estate, 63.

• Decision Date: 07 October 1941
• Docket Number: No. 63.,63.
• Citation: 22 A.2d 183,112 Vt. 148
• Parties: In re GEORGE S. WALKER TRUST ESTATE. Appeal of TREADWAY.
• Court: Vermont Supreme Court

22 A.2d 183

112 Vt. 148

In re GEORGE S. WALKER TRUST ESTATE. Appeal of TREADWAY.

No. 63.

Supreme Court of Vermont. Addison.

Oct. 7, 1941.

Exceptions from Addison County Court; Walter H. Cleary, Judge.

In the matter of the George S. Walker Trust Estate, wherein the final account of C. O. Church, trustee of the trust estate, was allowed by decree of the probate court, from which decree an appeal was attempted to be taken by Guy Treadway, and wherein the trustee and others moved that the appeal should be dismissed, and upon exceptions to the overruling of the motion, the cause came to the Supreme Court on exceptions.

Judgment reversed, motion to dismiss appeal granted, and appeal dismissed.

Argued before MOULTON, C. J, and SHERBURNE, BUTTLES, STURTEVANT, and JEFFORDS, JJ.

Asa S. Bloomer, of Rutland, for appellant.

Charles H. Brown, of Brandon, and Wayne C. Bosworth, of Middlebury, for appellee.

BUTTLES, Justice.

The final account of C. O. Church, trustee of the trust estate created by the will of the late George S. Walker, was allowed by decree of the Probate Court for the District of Addison, and from that decree an appeal attempted to be taken by Guy Treadway, a person claiming to be interested therein, was allowed by the probate court and entered in county court. Thereafter, within the time allowed by statute, C. O. Church, Trustee, and others, hereinafter termed the appellees, appeared specially and moved that said appeal be dismissed. Upon exceptions to the overruling of this motion the cause comes to this Court under the provision of P.L. 2072.

The motion challenges the authority and jurisdiction of the probate court to allow this appeal in the form in which it was prayed for and allowed, that form being "to the next stated term of Addison County Court to be holden at Middlebury within and for the County of Addison on the 3rd day of December, A.D. 1940." This form conforms to the requirement of our law as it existed prior to the enactment of R. L.1880, § 2270, but at the present time the taking and allowance of such an appeal is governed by section 3005 of the Public Laws, which reads: "A person interested in an order, sentence, decree or denial of a probate court, who considers himself injured thereby, may, except as otherwise provided, appeal therefrom to the county court, if application in writing therefor is made and filed in the register's office within twenty days from the date of the decision appealed from."

P.L. 3007 provides that such appeals shall be entered and docketed by the appellant in the county clerk's office on or before twenty-one days from the time they are taken, and that the appellee shall cause his appearance to be entered with such clerk on or before fourteen days after the expiration of such twenty-one days. P.L. 3013 requires the appellant to give notice of his appeal in such manner as the probate court directs, within the twenty-one days allowed for entering his appeal in the county clerk's office. By P.L. 3015 the appellant is required to file in the county court to which the appeal is granted a certified copy of the record of the proceedings appealed from, of the application for and allowance of the appeal with evidence that notice has been given to the adverse party according to the order of the probate court. In this case direction as to giving notice was given to the appellant by order of the probate court dated Nov. 5, 1940, the day on which application for the appeal was filed and allowed by probate court.

This Court has said emphatically that in the absence of a constitutional requirement, there is no such thing as a right of appellate review independent of a statute granting the same. What we speak of as such is a mere legislative privilege to be granted or withheld as may seem best to the law making body. Miles Block Co. v. Barre & Chelsea R. R. Co., 96 Vt. 526, 527, 121 A. 410. And again it is said that the right to an appellate review is purely statutory. Tucker v. Yandow et al, 100 Vt. 169, 171, 135 A. 600. This is in accordance with the rule generally prevailing in other jurisdictions. 2 Am.Jur. 847, Sec. 6; Heike v. United States, 217 U.S. 423, 30 S.Ct. 539, 54 L. Ed. 821; Saylor v. Duel, 236 Ill. 429, 86 N.E. 119, 19 L.R.A, N.S, 377; Wissenberg v. Bradley, 209 Iowa 813, 229 N.W. 205, 67 A.L.R. 1075; Drury v. Franke, 247 Ky. 758, 57 S.W.2d 969, 88 A.L.R. 917. A fortiori there can be only a statutory right of appeal from probate court, this being a court of special and limited jurisdiction, deriving all its authority from the statute. Holden v. Scanlin, 30 Vt. 177, 180; Mason's Guardian v. Mason, 86 Vt 279, 281, 84 A. 969; Probate Court v. Indemnity Co. of North America, 106 Vt. 207, 210, 171 A. 336. It follows that the probate court has only such authority to allow an appeal as is given by the statute, and it becomes a question of construction whether P.L. 3005 does or does not authorize an appeal such as was here attempted to be taken.

To be sure this Court has said that in these proceedings in the probate court there is no nicety of form, Robinson v. Executors of Robinson, 32 Vt. 738, 740, and we do not question the general rule that statutes giving and regulating the right of appeal are recognized as remedial in their nature and should receive a liberal construction in furtherance of the right of appeal. 2 Am.Jur. 849, Sec. 7. Nevertheless it is well established that the fundamental rule in construing statutes is to ascertain and give effect to the intention of the legislature. Clifford v. West Hartford Creamery Co., Inc., 103 Vt. 229, 252, 153 A. 205; Sorrell v. White, 103 Vt. 277, 280, 153 A. 359; In re Estate of Henry Wooley, 96 Vt. 60, 64, 117 A. 370; Simonds et al. v. Estate of Powers, 28 Vt. 354. Among other aids that may be employed in determining this intention are consideration of the history of the statute's enactment and the trend of previous legislation. Clifford v. West Hartford Creamery Co., Inc., supra; Baker v. Jacobs, 64 Vt. 197, 199, 23 A. 588; Fidelity & Deposit Co. v....