In re Wells' Estate

• Decision Date: 17 July 1897
• Citation: 38 A. 83,69 Vt. 388
• Court: Vermont Supreme Court
• Parties: In re WELLS' ESTATE. Appeal of WARD.

38 A. 83

69 Vt. 388

In re WELLS' ESTATE.

Appeal of WARD.

Supreme Court of Vermont. Chittenden.

July 17, 1897.

Exceptions from Chittenden county court; Rowell, Judge.

Petition of Lucia R. Ward to the probate court to have the estate of Oliver Wells, deceased, finally decreed to her, was dismissed, and she appealed to the county court, which also dismissed the petition. Appellant excepts. Affirmed.

S. C. Shurtleff and J. J. Monahan, for plaintiff.

L. F. Wilbur and Charles T. Barney, for defendant.

ROSS, C. J. On February 15. 1895, the appellant, Lucia R. Ward, preferred her petition to the probate court for the district of Chittenden, setting forth that she is the daughter and heir at law of Oliver Wells, deceased, and legatee under his will, and that she is advised and believes that the Congregational Church of Underhill has no interest in the estate under the provisions of the will; that the limitation or devise over to it is too remote and void; and that upon the death of Rebecca Wells all the estate vested in her absolutely. She prays that a decree may be made accordingly. The court appointed a time for hearing the petition, and gave due notice thereof. On the day appointed, the Congregational Church appeared and filed a motion to dismiss the petition, assigning, among other reasons, that the petitioner was concluded by a previous adjudication of the court, and that the will was not void, as to the Congregational Church, for remoteness. Upon appearance and hearing the probate court dismissed the petition. From this decree the petitioner appealed to the county court. In the latter court the Congregational Church pleaded the general issue and seven special pleas in bar, all of which set up as conclusive upon the appellant, and in bar of her application, a decree of the probate court made December 19, 1890, on the settlement and distribution of the estate of the testator. The appellant joined issue on the general issue, and replied precludi non to the special pleas, because she says that the property mentioned in her petition, consisting of both real estate and personal estate, has never been finally decreed to her, nor to the church, nor to any person or corporation whatsoever, by the probate court, which alone has jurisdiction to make such decree, and that title to the property is uncertain. The replication was traversed, and the trial was by the court. On the trial the court found that the decree of the probate court of December 19, 1890, and the portions of the will of Oliver Wells material to the issue, are correctly set forth in the third and fourth special pleas; that by that decree the appellant was given the use of the residue of the estate during her natural life, and that the fee of the residue was not thereby decreed to any one, nor has it been since then. On these findings the county court rendered judgment dismissing the petition of the appellant against her objection and exception. The material facts set forth in the pleas found to be true are that Oliver Wells deceased testate in 1887; that his will was duly probated; that by his will he gave the use of all his estate—First, to his wife, Rebecca Wells, during her natural life; secondly, at her decease, to his only daughter, the appellant, and the reversion to the heirs of her body, "and, should my beloved daughter, Lucia R. Ward, die, leaving no heirs of her body, or shall I at any future time fail to have heirs of my body," then the real and personal property, constituting his estate, is given in fee simple to the Congregational Church at Underhill Flats. This gift to the church has a condition in regard to its use by the church, and then the will proceeds: "The said church is not to have any interest in the aforesaid real estate and personal property until after the decease of my beloved wife, Rebecca Wells, and my beloved daughter, Lucia R. Ward; and is not then to have any interest in it unless my said daughter dies leaving no heirs of her body." The pleas further set forth that after probating the will, and after the executor had rendered his final account, and had it settled, and after finding both what estate was left and that Rebecca Wells had deceased, on due notice and appearance of all parties interested, on December 19, 1890, the probate court, "pursuant to the last will and testament of the deceased and the laws of this state," did decree to Lucia R. Ward, the petitioner, the use of the residue of the estate during her natural life. This decree was not appealed from by any of the parties, and is now in full force.

The first contention is whether it precludes the petitioner from the relief sought through her petition. December 19, 1890, the probate court had the subject-matter—the estate of Oliver Wells—and the parties interested therein before it. It had full jurisdiction to determine, and it was its duty to determine correctly, the rights of the petitioner in and to the estate, and to make a decree thereof. If the devise to the Congregational Church is now void under the law against perpetuities, it was so then. If the petitioner is now entitled to have the estate decreed to her in fee, she was so entitled then. Hence the identical subject-matter brought before the probate court by this petition, and all facts relevant thereto, were then before it for determination and decree. By its decree she was given only a life estate in the property under adjudication. If she was then entitled to have the property decreed to her in fee, she was, by the decree, deprived of that right. A decree of the estate to her then or now in fee would operate to vacate and set aside the decree then made. A decree of the estate to her now in fee would collaterally attack and vacate the decree then made. It would cut the bond then placed around the property of the estate by which she could only enjoy its use during her life, and give her title, dominion, and absolute control of the property. By that decree she was deprived of the enjoyment of the fee, dominion, and absolute control of the property. Being deprived of a right in the property which she now claims, she could have appealed from the decree, and had it corrected, if erroneous. The decrees of the probate court made in matters and against parties within the sphere of its jurisdiction, not appealed from, are conclusive upon those to whom the right of appeal is given. Collard v. Crane, Brayt. 18; Judge of Probate v. Fillmore, 1 D. Chip. 420; Giddings v. Smith, 15 Vt 344 Lawrence v. Englesby, 24 Vt. 42. Nor can such decrees be attacked or impeached collaterally in the probate court, or in any other court. Rix v. Smith, 8 Vt. 365; Lawrence v. Englesby, 24 Vt. 42; Driggs v. Abbott 27 Vt 580; Abbott v. Colburn, 28 Vt. 663; Richardson v. Merill, 32 Vt 27; Robinson v. Swift, Id. 283; Probate Court v. Vanduzer, 13 Vt. 135. The petition brought before the probate court no facts which were not before it when it made the decree of December 19, 1890. The same parties were then before the court which the petition brought before it. It has always been held that the decisions of tins court on the same facts and between the same parties are conclusive when the case comes a second time before the court. Ross v. Bank, 1 Alk. 43; Dana v. Nelson, Id. 252; Herrick v. Belknap, 27 Vt. 673; Stacy v. Railroad Co., 32 Vt 551; Barker v. Belknap, 39 Vt. 168; Childs v. Insurance Co., 56 Vt. 609; Railroad Co. v. Hunt, 59 Vt. 294, 7 Atl. 277. This doctrine is applicable to the decrees of the probate court made within its jurisdiction. Nor is the result changed by the finding of the county court that no final decree in regard to the fee of the property had been made by the probate court. By the terms of the will the time had not arrived when the probate court could determine in whom the fee of the property vested...