In Re Watkins' Estate.

• Decision Date: 06 February 1945
• Docket Number: No. 318.,318.
• Citation: 41 A.2d 180
• Parties: In re WATKINS' ESTATE.
• Court: Vermont Supreme Court

41 A.2d 180

In re WATKINS' ESTATE.

No. 318.

Supreme Court of Vermont.

Oct. 3, 1944.

On Reargument Feb. 6, 1945.

COPYRIGHT MATERIAL OMITTED.

COPYRIGHT MATERIAL OMITTED.

Appeal from Probate Court, Chittenden County; Walter H. Clearly, Judge.

Proceeding in the matter of the estate of Harris R. Watkins, deceased, wherein the Howard National Bank & Trust Company filed a petition to be appointed administrator de bonis non, cum testamento annexo of the estate, which petition was opposed by those entitled to take under decedent's will. An order of the probate court appointing the bank administrator de bonis non, cum testamento annexo of the estate was affirmed by the county court, and the beneficiaries bring exceptions.

Judgment reversed, petition of bank dismissed with costs and to be certified to the probate court.

Edwin W. Lawrence, of Rutland, for appellant, petitionee.

Guy M. Page, of Burlington, for appellee, petitioner.

Before MOULTON, C. J., and SHERBURNE, BUTTLES, STURTEVANT, and JEFFORDS, JJ.

JEFFORDS, Justice.

After the opinion was handed down in the case of In re Estate of Watkins, 113 Vt. 126, 30 A.2d 305, holding that the Howard National Bank and Trust Company (hereinafter called the Bank) did not by virtue of its consolidation with the City Trust Company succeed the latter as executor of the Watkins estate, the Bank petitioned the probate court to be appointed administrator, d.b.n., c.t.a. of that estate. This petition was opposed by those entitled to take under the Watkins will hereinafter called the beneficiaries, who asked for the appointment of the Rutland Trust Company, or some other suitable person, to that office.

A hearing was had before the probate court which found that the Bank was a suitable person within the meaning of the statute, P.L. 2784, and ordered that the Bank, upon filing a bond in a specified amount, be appointed such administrator. An appeal was taken by the beneficiaries to this order and a hearing was had in the Chittenden County Court. That court found that the Rutland Trust Company is a suitable person to administer the estate. It also stated in finding No. 25 that: ‘After careful deliberation and consideration of all the evidence, the objections and all the requests for findings, we find that the appellee (the Bank) is a suitable person to administer the estate and we are convinced and find that in justice and fairness the appellee is a more suitable person to administer the estate than the Rutland Trust Company.’ A judgment was entered affirming the order of the probate court and appointing the Bank administrator d.b.n., c.t.a. of the Watkins estate. The case is here on various exceptions taken by the beneficiaries.

The first matter for our consideration is the claim made by the Bank that no valid appeal was taken from the order of the probate court for that no bond was given as required by P.L. 3010, which reads as follows:

‘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.’

The Bank filed a motion in the county court to dismiss the appeal on the ground that none of the persons appealing gave the bond in question. This motion was denied. The Bank has filed no bill of exceptions so the beneficiaries say that the ruling below has become res adjudicata. The Bank claims the contrary and says as this question involves a claim of lack of jurisdiction of the subject matter it can properly be raised here in spite of the absence of a bill of exceptions on its part. Passing over this claim of the beneficiaries we will proceed to determine whether the bond as given sufficiently complies with the statute.

The bond is in the amount of $250 and is signed and sealed by Edwin W. Lawrence as principal and Harold I. O'Brien as surety. It contained the condition that if the parties appealing, naming them, shall prosecute the appeal to effect, and pay all intervening damages and costs occasioned by the appeal, the obligation of the bond to be void, otherwise to be and remain in full force.

The bond was apparently satisfactory to the probate court as the judge signed the citation on appeal with the form of the same altered somewhat and ordered the appeal be allowed and notice of it given. This change in the form was made by inserting the words ‘by their attorney’ after the printed word ‘appellants' so it appears that the appellants by their attorney as principal have filed a bond, etc.

The Bank claims that the word ‘give’ appearing in P.L. 3010 must be taken to mean execute and deliver so it must follow that the statute requires the person appealing to appear on the bond as principal. No cases have been shown us nor have we found any construing this statute on this point.

The statute in question first appears in the Acts of 1797 at page 247 where it is provided that the bond shall be in a reasonable sum with sufficient sureties. It was changed by the Acts of 1821, p. 33, Sec. 7 of ch. 3 by providing that an aggrieved person may appeal from an order of the probate court on giving bond to the satisfaction of that court. It is apparent that the Legislature intended by this change to broaden the discretionary powers of a probate court in respect to its approval of the appeal bond. This provision respecting the satisfaction of the court as to the bond has been continued in the statute down to the present time.

It is clear that the purpose of the statute is to effectuate an absolute security to the other parties to be affected by the appeal. Arnold v. Brook's Estate, 36 Vt. 204, 207. Construction of a statute which leads to absurd consequences must always be avoided if possible. In re Swanton Market Area, 112 Vt. 285, 292, 23 A.2d 536; State Highway Board v. Gates, 110 Vt. 67, 72, 1 A.2d 825. And so, also, where an adherence to the strict letter of the statute, or to the literal import of the words would lead to injustice. Brammall v. LaRose, 105 Vt. 345, 350, 165 A. 916. 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 appeal. Lambert v. Merrill, 56 Vt. 464. In view of this necessity of filing a bond within 20 days after the decision of the probate court to be appealed from is handed down in order to perfect the appeal, it is apparent that the construction claimed by the Bank might lead to absurd and unjust consequences. It might well happen at the present time that a person who is a party in a case in a probate court is also in the armed forces of his country and has been ordered to foreign service, so it would be impossible to get the bond for appeal to him in time to execute and return it within the 20 day period. Or it might well be that a party during such period is so sick or disabled as to be unable to attend to such matters. It would be unreasonable to hold that the Legislature intended to penalize such persons by depriving them of their legal right of appeal because they were unable to execute an appeal bond.

Moreover, as we have seen, the purpose of this bond is to provide security for the adverse party. No other purpose is apparent. Thus the appellee cannot be harmed solely because some person other than the appellant appears on the bond as principal. The discretionary power given the court as to the bond is not limited by the terms of the statute except in respect to the obligee and the condition of the bond. If we give the construction to the statute claimed by the Bank it is apparent that the court must accept an appellant as principal on the bond regardless of whether that person is satisfactory to the court from a financial standpoint. Under such construction the court would be forced to take as the only real security the obligation of the surety. This use of the word ‘satisfactory’ in the statute, unrestricted except as above noted, indicates that the Legislature did not intend any such result and did not intend that in no case could the court accept a bond as satisfactory unless it was executed as principal by the person appealing.

We realize that when by statute a person is required ‘to give a bond’ it may properly be said it was intended that such person execute and deliver the bond as principal. However, in P.L. 3010 there is not a mere requirement of the giving of a bond. It is there further provided that the bond shall be satisfactory to the court. We are convinced, for the reasons heretofore advanced, that the Legislature intended by this provision to use the word ‘give’ in the statute as meaning ‘furnish’. We believe it intended to place only such restrictions as are set forth in the statute on the judgment and discretion of the court in deciding whether a bond given or furnished by the person appealing is satisfactory. Consequently we hold that the bond in question, having been found satisfactory by the probate court, is not invalid because it was not executed and delivered by the persons appealing, or some of them, and that the bond sufficiently complies with the statute. Clark v. Bank of Hennessey, 14 Okl. 572, 79 P. 217, 2 Ann.Cas. 219.

The beneficiaries claim that our cases relating to recognizances are decisive in their favor on the question now under discussion. They cite Levin v. Peck, 88 Vt. 507, 93 A. 256; Cheney v. McLellan, 43 Vt. 157; Chittenden v. Catlin, 2 D.Chip, 22, and Young v. Shaw, 1 D.Chip. 224. For various reasons, which we need not go into, we do not believe they do control here. They are helpful, however, in that they disclose a tendency to give a liberal rather than a strict construction to statutes similar in purpose and in wording to P.L. 3010. These cases also show that when statutes have required that a certain person...