In re Moody's Estate

• Decision Date: 01 October 1946
• Docket Number: 1739
• Parties: IN RE: ESTATE OF GEORGE E. MOODY
• Court: Vermont Supreme Court

49 A.2d 562

115 Vt. 1

IN RE: ESTATE OF GEORGE E. MOODY

No. 1739

Supreme Court of Vermont

October 1, 1946

May Term, 1946.

Judgments.

1. A Probate Court has the inherent power to correct its decree by a nunc pro tunc order so that it will accord with the decision rendered and speak the truth.

2. A County Court, sitting on appeal as a higher Court of Probate has jurisdiction to enter such nunc pro tunc order as the Probate Court might have entered.

3. The issuance of a nunc pro tunc order, either to correct an inaccurate record or to direct an entry where the record has been omitted through inadvertence or mistake, should be done with great caution and only where the error or omission has been proved beyond all doubt; whether it should be made depends upon the circumstances of the particular case, and it should be granted or refused as the justice of the cause may require.

4. To justify the entry of a nunc pro tunc order, it should appear that the mistake is due, not to the laches or fault of the parties, but to the court.

5. In determining whether there is error in a judicial record or whether the record of a judgment which has actually been made has been omitted through mistake, any legitimate evidence may be admitted, which may include the recollection of the judge who rendered the judgment; the evidence is not restricted to the record.

6. Requests for findings which call for conclusions of law are not for consideration.

7. Rules of the Probate Court adopted under authority of statute have the force of law and are to be judicially noticed.

8. Rulings as to the scope of cross examination, which rest largely in the sound discretion of the trial court, are not revisable in the absence of an abuse of such discretion.

9. Under Probate Court Rules 3 (4) and 12, it is discretionary with the Probate Judge to limit notice to public notice by publication and in such case a party is bound by the notice even though he has appeared by attorney and the attorney has not been directly notified.

10. Under the rule that acts which purport to have been done by public officers in their official capacity and within the scope of their duty will be presumed to have been regular and in accordance with their authority, it will be assumed that such authority was not exercised arbitrarily or capriciously.

11. There is a distinction between the rendition of a judgment and the entry of it: the first is the judicial act of the court and the second the ministerial act of the clerk and is merely the record and evidence of what has been adjudicated.

12. Under P. L. 3005 the twenty days allowed for taking an appeal runs from the date of the decision of the Probate Court, and not from the date of the entry of such decision.

APPEAL FROM PROBATE COURT. Trial by court, Washington County Court March Term, 1945, Cleary, J., presiding. Decree for the petitioner. Affirmed.

Judgment affirmed. To be certified to the Probate Court for the District of Washington.

Hunt & Hunt for the petitioners.

Finn & Monti for the petitionees.

Present: MOULTON, C. J., SHERBURNE and STURTEVANT, JJ., and BLACKMER and HUGHES, Supr. JJ.

OPINION

MOULTON

This is a petition originally brought to the Probate Court for the District of Washington, on December 7, 1943, by Stedman C. Wheeler, administrator d. b. n. c. t. a. of the estate of George E. Moody, deceased, Charles B. Adams, executor of the estate of Mark H. Moody, deceased, Ruth Moody and Marion Moody, alleging that on July 21, 1930, Wheeler's final account as such administrator was allowed by that court, and it was adjudged that an order and decree should pass settling the estate in accordance therewith, but that the court through error or mistake failed to embody the points decided in appropriate order or orders officially evidencing the allowance of the account and the adjudication actually made; and praying that the matters so adjudicated might be embodied in appropriate entry or entries as of July 21, 1930, by a nunc pro tunc order, and for such other and further relief as to the court should seem meet. On hearing before the Probate Court the petition was granted, and an appeal was taken to the County Court by the petitionees, Ollie M. Perry, administratrix of the estate of Jennie S. Moody, the widow of George E. Moody, and Ollie M. Perry, personally, and Fontinelle Goodrich, Mrs. Moody's daughter by a previous marriage. Mrs. Moody and her two step daughters were beneficiaries under Mr. Moody's will.

In the County Court, after hearing the testimony on both sides, findings of fact were filed and a nunc pro tunc order was made in accordance with the prayer of the petition. The petitionees have brought the cause here on their exceptions.

From the findings of fact we are informed that George E. Moody died testate on November 6, 1921, and left surviving him a widow, Jennie S. Moody, a son by a former marriage, Mark H. Moody and two granddaughters Ruth Moody and Marion Moody. Jennie S. Moody had two daughters by a previous marriage, Olive N. Perry and Fontinelle Goodrich. Mark H. Moody died before the institution of the present proceeding, and Jennie S. Moody during its pendency. The will of George E. Moody, which was dated February 5, 1919, was admitted to Probate on December 5, 1921, and Mark H. Moody was, in accordance with its provisions, appointed executor of the estate. He duly qualified and acted as such executor until he resigned on March 26, 1928. On May 22, 1928, Stedman C. Wheeler was appointed administrator d. b. n. c. t. a.

The will made the following provision for the widow: "Second, I hereby give, devise and bequeath unto my beloved wife, Jennie S. Moody, the sum of Twelve Thousand Dollars, said amount to be in lieu of any rights by way of homestead, dower or other estate given her by law. I direct that said amount shall be paid to her by my executor by the giving to her of a note of Twelve Thousand Dollars, signed by my son, Mark H. Moody, said note to be written with interest annually at five percent, if money at that rate is not taxable; otherwise at six percent to be payable $ 1,000. on or before every year from its date and to be secured by a mortgage on my Cobb Hill Farm in Moretown, which farm is bequeathed to my said Son in the residuary clause in this will." The will also bequeathed the sum of one thousand dollars each to Ruth Moody and Marion Moody and to Ollie M. Perry and Fontinelle Goodrich, these legacies to be payable by notes given in the same way as the note to the widow. Mark Moody was given all the residue of the estate.

The inventory and appraisal showed that the testator owned various parcels of real estate at the time of his death, and, on application dated December 20, 1922, and signed by Jennie S. Moody, a license to sell all of the real estate was granted by the Probate Court to Mark Moody as executor. The license was issued on January 16, 1923. On June 20, 1924, an additional inventory was filed showing a one half interest in certain other real estate, and a license was issued to sell this property, on application signed by Jennie S. Moody.

On April 18, 1923, Mrs. Moody applied to the Probate Court for support as widow. After hearing on April 27, at which she was present, with her attorney, the late Erwin M. Harvey, Esq., she was granted an order for $ 65. a month, and pursuant thereto she was paid by the executor in all the sum of $ 5070.00 during the pendency of the settlement of the estate until April 25, 1928. Mr. Harvey acted as her attorney during the administration of the estate by Mark Moody and by Stedman Wheeler.

After the resignation of Mark Moody his account was filed in the Probate Court. It was duly advertised and a full hearing had on January 7, 1929, at which he, Stedman Wheeler and Mrs. Moody appeared with their respective attorneys. The account showed that some of the real estate had been sold and that the rest was still in the estate. The account was allowed in part and disallowed in part. An item showing a payment of $ 345. to the widow as a part of her legacy was disallowed on the ground that it was premature since the solvency of the estate had not been determined. This sum, however, was kept by the widow and was never repaid to the estate. No appeal was taken from the rulings of the court as to the account.

On January 28, 1929, Stedman Wheeler obtained a license to sell all the remaining real estate for the purpose of paying the debts of the estate. This license included the right to sell "the homestead interest of the widow therein, provided, however, that the sum of $ 1,000. be retained in the Administrator's hands in lieu of the said homestead right, the said $ 1,000. to be disposed of under further order of this court." In pursuance of the license Wheeler sold all the remaining real estate.

On June 6, 1930, the Probate Court issued an order of notice for the allowance of Wheeler's account as administrator d. b. n c. t. a. The hearing was set for July 7. The account was duly advertised. On July 7 Wheeler appeared before the court, and Charles B. Adams, Esq., appeared as attorney for Mark Moody. The court found the account unsatisfactory in form and suggested that it should be tied in with the previous account of Mark Moody, as executor. The allowance of the account was held open for this purpose, and on July 21st it was again presented to the Court. It showed a balance of $ 1,000. in Wheeler's hands as proceeds of the sale of the homestead right of the widow, and also that Mark Moody had advanced in excess of $ 1,000. to the estate. The Probate Judge examined it, found it in proper shape, observed that Mark Moody had advanced money to make the estate solvent, and allowed the account. Wheeler paid a bill for the probate...