In re Welch's Will

• Decision Date: 31 October 1896
• Citation: 69 Vt. 127,37 A. 250
• Court: Vermont Supreme Court
• Parties: In re WELCH'S WILL. FIELD v. HUBBARD.

37 A. 250

69 Vt. 127

In re WELCH'S WILL.

FIELD

v. HUBBARD.

Supreme Court of Vermont. Addison.

Oct. Term, 1896.

Exceptions from Addison county court; Rowell, Judge.

Appeal by Harriet Anna Hubbard from an order of the probate court directing the payment of a legacy left by the will of Harriet A. Welch, deceased, to Harriet Ella Hubbard Field, on her petition therefor. The cause was passed to the supreme court for determination of exceptions taken to rulings of the county court. Reversed.

Bliss & Debervllle, for appellant.

Stewart & Wilds, for appellee.

ROSS, C. J. By the will of Harriet A. Welch, which was duly probated, a legacy of $500 is given to Harriet Bllen Hubbard, a niece of the testatrix. The probate court decreed this legacy to Harriet E. Hubbard, a niece of the testatrix, May 20, 1895. No niece of the testatrix bearing the name of Harriet Ellen Hubbard appearing to claim the legacy, October 4, 1895, Harriet Ella Hubbard Field, a niece of the testatrix, hied her petition in the probate court, setting forth that she is the person designated in the will, and that Harriet Anna Hubbard, also a niece of the testatrix, asserts that she is the person designated; that, by reason of the uncertainty in the Identification of the legatee named in the will and decree, the executors refuse to pay the legacy to the petitioner,— and praying that the decree of May 20, 1895, be so corrected as to designate the petitioner as the distributee entitled to the legacy. On December 2, 1895, on hearing, the probate court decreed that the executors pay the legacy to the petitioner. Nothing being shown to the contrary, it is to be presumed that due notice of this application and hearing was given. Harriet Anna Hubbard, claiming to be aggrieved by the decree, brought the matter to the county court by appeal. In the county court, on motion of the appellant, the petitioner, against her exception, was ordered to furnish security to the appellant for costs.

1. Had the county court the legal power to make this order? It is only by force of statute that costs are allowed (Tyler v. Frost, 48 Vt. 486), or that a court has the right to require a party, in a proceeding before it, to give security for their payment. None of the sections of the statute (2345, 1408, 2596, 2589) called to our attention by the appellant give the court any power to require the petitioner to furnish security for the payment of costs. We are not aware that any such statute exists. The petition was not required to have, and did not have, any citation attached, requiring the appellant to appear and answer before the probate court, and for this reason does not come within the provisions of section 2345. Section 1408, when in a pending case it is found that the recognizance taken for the payment of costs is insufficient, authorizes the court to order additional security for their payment to be given. V. S. § 2589, requires the appellant to give to the court a bond to prosecute her appeal to effect, and pay intervening damages and costs occasioned by the appeal. Section 2596 gives the supreme and county courts, in appeals from the probate court, power to tax or deny costs to the prevailing party. If, under this section, the county court might, in its discretion, allow costs against the petitioner if the appellant prevails, the section gives it no power to require the petitioner to furnish security for their payment. This exception is sustained.

2. The appellant filed a plea alleging that the petitioner is not the person designated by the testatrix in the legacy. The plea is demurred to. Was it sufficient? In appeals from the probate court, the county court acts as a higher probate court. Adams v. Adams, 21 Vt. 162; Holmes v. Holmes, 26 Vt. 536; Hilliard v. McDaniels, 48 Vt. 122. It took by the appeal, for determination and decision, the identical matter which was before the probate court. The probate court had in hand the estate of the testatrix for distribution in accordance with her will. By the will a legacy of $500 is given a niece of the testatrix called Harriet Ellon Hubbard. No niece answering that name in full appears to claim the legacy, nor is known to exist. The petitioner and appellant each bear some portion of the name. Whether the testatrix had other nieces which bear some portion of the name does not appear. It was for the probate court to determine, on proper investigation, whether the testatrix intended the legacy for the petitioner, the appellant, or some other niece bearing some portion of the name, or whether the legatee was so imperfectly and inaptly designated that the legacy is void and becomes a part of the residue of the estate. No other determination would fully ascertain, and enable it to decree, the disposition which the executors should make of this $500. The investigation by the county court, as a higher court of probate, must be as broad, and cover the same ground, as did the investigation in the probate court, to enable it correctly to determine and decree what is to be done with this legacy. It must fully determine and decree in regard to its disposition, and certify its determination and decree to the probate court. The plea of the appellant covered only a portion of the inquiry and investigation brought by the appeal to the county court for determination and decree. The plea might be found to be true, and the county court would have advanced only one step in the required investigation and determination. Hence it should have been adjudged insufficient on demurrer. The proceeding in both courts is in the nature of a proceeding in rem, namely, what shall the executors be ordered to do with that portion of the estate included in the legacy? Upon it the decree would operate, as...