Lyons v. Field
| Decision Date | 02 October 1934 |
| Parties | LYONS v. FIELD et al. |
| Court | Vermont Supreme Court |
Appeal from Probate Court, Rutland District; Harvey R. Kingsley, Judge.
In the matter of Samuel H. Griswold, deceased. Proceeding on petition of Fred A. Field, trustee. From an order and decree with respect to the distribution of the assets of two trust funds, Marion J. Lyons, executrix of the estate of Anna M. Rentz, deceased, appeals.
Reversed and remanded, with directions.
Argued before POWERS, C. J., and SLACK, MOULTON, THOMPSON, and SHERBURNE, JJ.
Charles B. Adams, of Waterbury, for appellant.
Edward Dana, of Rutland, for trustee.
George M. Goddard, Lawrence, Stafford & O'Brien, and Lindley S. Squires, all of Rutland, for heirs.
Samuel H. Griswold of Rutland died testate. He was survived by his widow and an unmarried daughter, Carrie Emma Griswold. His will was admitted to probate on August 11, 1896, and the executor named in the will duly qualified as such.
His will provided for the creation of two trust funds, one of $20,000, the income therefrom to be paid to his widow, and on her death to his daughter, and one of $25,000, the income therefrom to be paid to his daughter so long as she remained unmarried. The will also bequeathed certain specific legacies which are immaterial here. Carrie Emma Griswold died unmarried.
The will contained the following provision: "The residue of my estate, including what shall remain after the payment of all the aforesaid legacies and the full and complete execution of all the aforesaid trusts, I give, devise and bequeath as follows, viz. * * * to the American Board of Commissioners for Foreign Missions the sum of one Thousand dollars and to the American Bible Society one Thousand dollars * * * to have and to hold the same respectively to their own use; and of what shall remain after satisfying the two last mentioned legacies I give, devise and bequeath to the heirs of my sisters, Margaret and Elisia (both deceased) in equal shares to each to their own use."
It appears that the executor filed his final account, which was duly advertised, showing that after the creation of the two trust funds, the payment of the specific bequests, the debts, and expenses of administration, there remained a residue of $2,259.02; that the account of the executor was allowed on March 8, 1904, and, on the same day, the probate court made a decree of distribution, decreeing the residue to the heirs of the testator's sisters, Margaret (Mattocks) and Elisia (Cavanaugh), per stirpes. No appeal was taken from that decree.
Appellee Fred A. Field, trustee of the two trusts, brought his petition to the probate court on May 8, 1933, setting forth that the trusts provided for income therefrom to be paid to Carrie E. Griswold during her lifetime, if she did not marry; that she did not marry, and was now deceased; and praying (for license and authority to make distribution of the cash assets of the two funds, and for a determination of the persons entitled to participate in such distribution, and for the allowance of his accounts as trustee.
The probate court, after hearing on notice, held that it was the intention of the testator, as expressed by the provisions of the will, that the trust funds should be distributed to the heirs of the two sisters who were living at the time of the decease of Carrie E. Griswold, the cestui qui trust, per capita; and the court, having ascertained the heirs of the two sisters who were entitled to share in the distribution of the trust funds, made a decree distributing the net assets of the two funds to them, per capita.
The probate court found that the estate of Anna M. Rentz, "who deceased after the death of the cestui qui trust, Mary E. Powers and Caroline G. Cavanaugh," was entitled to share in the distribution of the trust funds as an heir of Elisia (Cavanaugh), and decreed the same share to her as was decreed to the other heirs of Margaret and Elisia.
The appellant, who is the executrix of the estate of Anna M. Rentz, appealed from the decree of distribution directly to this court, as provided by G. L. 3451 (P. L. 3001). The appellee filed a motion to dismiss the appeal on the grounds, in substance, that it appears that the motion for the appeal was made by the appellant as executrix, and the appeal was granted her in such representative capacity; that, as executrix, she has no such interest in the estate of Samuel H. Griswold as is necessary by statute to the right of appeal.
G. L. 3451 (P. L. 3001) provides: "A person interested in an order, sentence, decree or denial of a probate court involving only a question of law may take an appeal therefrom directly to the supreme court in the manner provided in cases of appeals from the court of chancery." The appeal in question was taken in the manner provided in cases of appeals from the court of chancery.
This court has held repeatedly that under G. L. 3455 (P. L. 3005), providing that an interested person may appeal to the county court from the decree of a probate court, an executor, who has no interest in the estate as an individual or otherwise than in his representative capacity as executor, is not an "interested person" within the meaning of the statute, and has no right of appeal; that the persons entitled to an appeal are those who have some legal interest which may, by the decree of the court, be either enlarged or diminished. Hemmenway v. Corey, 16 Vt. 225, 227; In re Vincent's Estate, 84 Vt. 89, 78 A. 714; Peck's Adm'r v. Peck's Adm'r, 91 Vt. 91, 96, 99 A. 635; Simonds v. Simonds' Estate, 96 Vt. 110, 117 A. 103, 28 A. L. R. 420; Flory v. Flory's Estate, 98 Vt. 251, 127 A. 369.
It will be observed that the language of G. L. 3451 (P. L. 3001), specifying who may appeal from a decree of the probate court directly to the Supreme Court, and the language of G. L. 3455 (P. L. 3005), specifying who may appeal from such a decree to the county court, is identical. We think that, by analogy, the construction that has been given to G. L 3455 (P. L. 3005) by this court applies to G. L. 3451 (P. L. 3001), and that an executor, who has no interest in the estate as an individual or otherwise than in his representative capacity as executor, has no right of appeal under G. L. 3451 (P. L. 3001).
But this does not necessarily mean that the executor of an estate that is interested in the settlement of another estate is not an "interested person" within the meaning of the statute for the purpose of taking an appeal from a decree made in the estate that is being settled. If Anna M. Rentz had been living at the time the decree distributing the trust funds was made, she would have been an "interested person," and could have appealed from the decree either under G. L. 3451 (P. L. 3001) or under G. L. 3455 (P. L. 3005). The appellant, as executrix, represents the estate of Anna M. Rentz. It is her duty, as executrix, to ascertain the assets and debts of the estate and to put the former in condition to pay the latter, if sufficient, and the surplus, if any, in a condition to be distributed to those...
To continue reading
Request your trial