In re Taylor's Estate
| Decision Date | 01 November 1938 |
| Docket Number | 916 |
| Citation | 2 A.2d 317,110 Vt. 80 |
| Parties | IN THE MATTER OF THE ESTATE OF ALFRED TAYLOR |
| Court | Vermont Supreme Court |
October Term, 1938.
1. Determining Necessity for Election by Widow between Statutory Rights and Provisions in Husband's Will---2. Decrees of Probate Court Conclusive If Final---3. Decrees of Homestead and of Distribution Both Held for Consideration as to Construction of Will by Court---4. Decree of Distribution Appealable If Final---5. Decree of Distribution Held Final and Appealable---6. Decree of Homestead Held Final and Appealable---7. Decrees of Homestead and of Distribution Held Conclusive---8. Decree of Homestead Inconsistent with Theory Widow Compelled to Elect---9. Decree of Distribution Ordering Payment of Income to Widow for Life Inconsistent with Theory Widow Entitled to Both Testamentary Provisions and Statutory Rights---10. Decree of Distribution Construed Not to Leave Open Question as to Widow's Right to Statutory Rights---11. Decrees of Homestead and of Distribution Held to Govern Distribution of Estate Though Erroneous.
1. In absence of express or implied intention on part of testator that his widow should elect between her lawful rights in his property and provisions made for her in his will, she shall take both, and he who asserts that testator intended provisions made for her to be in lieu of her marital rights in his estate has burden of proving that fact beyond reasonable doubt.
2. Decrees of probate court, if final, even though erroneous are conclusive, and establish law of case.
3. Where testator provided that income from his estate was to be paid over to his widow during her life if she had fulfilled conditions of certain contract, and probate court decreed homestead to widow and on same day issued another decree ordering executor to pay income from estate to widow during her life and at her death to deliver estate on hand to persons entitled thereto in accordance with will and with decree to be made at that time, both decrees were to be considered in determining whether probate court construed will with respect to right of widow to take both marital rights under statute and according to provisions of will since they were intended to, and did, operate to make disposition of estate so far as could be done at any time prior to death of widow.
4. If decree of distribution made by probate court was final one appeal could have been taken from it.
5. Though decree of probate court ordering executor to pay income from estate to widow during her life and at her death to distribute estate on hand to persons entitled thereto in accordance with will and with decree to be made at that time was not final in sense that there must have been another decree in future to dispose of remainder, it was final in that appeal might have been taken from it, since it disposed completely of matters then before court upon merits and upon issues presented.
6. Decree of probate court ordering executor to pay to widow sum representing her homestead interest was final so that appeal might have been taken therefrom.
7. Decrees of probate court, one ordering executor to pay to window sum representing homestead interest and the second ordering executor to pay income from estate to widow during her life and at her death to deliver estate then on hand to persons entitled thereto in accordance with will and with decree to be made at that time, neither of which decrees was appealed from, were conclusive in subsequent proceedings upon administrator d. b. n. c. t. a. of testator's estate and administrator of widow's estate.
8. Homestead is one of widow's statutory rights in her deceased husband's estate, so that decree of probate court ordering executor to pay to widow sum representing homestead interest was inconsistent with theory that provisions of will were intended to be in lieu of her statutory rights.
9. Decree of probate court ordering executor to pay income from estate to widow during her life and at her death to deliver estate on hand to persons entitled thereto in accordance with will and with decree to be made at that time was inconsistent with theory that widow should have her statutory rights in addition to what was given her by will, since if court had so construed will it would have decreed to widow portion of estate to which she was entitled under statutes.
10. Words "in accordance with said will and with a decree to be made by said Court at that time," in decree of probate court order-
ing executor to pay income from estate to testator's widow during her life and after her death to deliver estate on hand to persons entitled thereto in accordance, etc., had reference only to ascertainment of identity and determination of shares of those who were to take after widow's death and did not have effect of leaving granting of widow's statutory rights until termination of trust at her death.
11. Where probate court decreed sum representing homestead interest to testator's widow and by another decree on same day ordered executor to pay income from estate to widow for life and after her death to deliver estate on hand to persons entitled thereto in accordance with will and decree to be entered at that time, construction given to will was legal construction and, though erroneous, became law governing distribution of estate when no appeal was taken, so that property rights which vested under it could not later be disturbed.
APPEAL IN PROBATE. From decree of probate court for the district of Orleans, E. J. Smith, Judge of Probate, dividing testator's estate among legatees designated by the will to take upon death of his widow the administrator of the widow's estate appealed direct to the Supreme Court claiming the widow was entitled to her statutory rights in addition to the provision made for her in the will. The opinion states the case.
Decree affirmed. To be certified to the probate court for the district of Orleans.
J. W. Redmond and Raymond L. Miles for the appellant.
Hubert S. Pierce for the appellee.
Present: MOULTON, C. J., SHERBURNE, BUTTLES, STURTEVANT and JEFFORDS, JJ.
Alfred Taylor died testate on June 12, 1912. By his will he directed: "That if my wife, Margaret Taylor, survives me, my said executor pay over to her, so long as she shall live, the income from my estate less only the expenses of administering the same; but I particularly direct that if any of the conditions or stipulations mentioned and set forth in a certain contract, now in the possession of Aaron H. Grout of Newport, Vermont, entered into on the 7th day of April, Am. Dec. 1911, by and between the said Margaret and myself, on the one part, and the said Grout as trustee, on the other part, shall have been broken or unfulfilled by the said Margaret; then this provision for her support shall be null and void; and I further direct that if the said Margaret shall, during my life time, desert me or leave my bed and board or refuse to care for me as a wife should, then she shall forfeit all rights and benefits under this my will, and shall have no interest whatsoever, either marital or otherwise, in and to my said estate or the income thereof." Other paragraphs of the will provide for the distribution of the estate upon the death of Margaret, among the sisters and sister-in-law of the testator, or if any such beneficiaries should not survive him, to the heirs of their bodies. The will was admitted to probate, the widow filed no written waiver of the provisions made for her, and all the legatees were living at the time of the testator's death. On April 8, 1913, upon the petition of the widow, the probate court ordered the executor to pay to her the sum of $ 500 out of the avails from the sale of the testator's dwelling house, as and for her homestead interest therein. On the same day a decree of distribution was made, after due notice to all persons interested, and no one appearing to object, which, after stating the amount in the hands of the executor after payment of the expenses of administration, the debts and funeral charges and the homestead interest of the widow, recited the third paragraph of the will above quoted, and concluded as follows: "And whereas, it appears that none of the conditions in said contract have been broken or unfulfilled, and that the said Margaret, during the life of said testator, by no act of hers forfeited any rights or benefits under the conditions set forth in said will: Therefore, it is ordered by said Court that the said Margaret Taylor shall be paid by said Executor, so long as she shall live, the income from said estate above...
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