Marion J. Lyons, Exrx. v. Fred A. Field, Trustee,

• Decision Date: 02 October 1934
• Parties: MARION J. LYONS, EXRX. v. FRED A. FIELD, TRUSTEE, ET AL
• Court: Vermont Supreme Court

175 A. 11

106 Vt. 474

MARION J. LYONS, EXRX. v. FRED A. FIELD, TRUSTEE, ET AL

Supreme Court of Vermont

October 2, 1934

May Term, 1934.

Appeal from Probate Court---Executors and Administrators---P. L 3001---"Interested Person"---Probate Court---Effect of Decree of Distribution Unappealed from---"Law of the Case."

1. An executor having no interest in estate as individual or other than in his representative capacity as executor, is not "interested person" within meaning of P. L. 3001 authorizing person interested in order, sentence, decree, or denial of probate court involving only question of law to appeal therefrom directly to Supreme Court.

2. Executrix, representing estate and having duty to ascertain its assets and debts and to put former in condition to pay latter, if sufficient, and surplus, if any, in condition to be distributed to those legally entitled thereto, where estate she represented was interested in settlement of another estate, held "interested person" within meaning of P. L. 3001, and entitled to appeal from decree of probate court in latter estate.

3. Probate court has jurisdiction to make decree distributing estate of deceased person, and such decree, unappealed from is binding upon all parties and becomes law of case, whether right or wrong, as to all questions passed upon by court when making decree, and controls as to such questions in future proceedings in case.

4. Where probate court in making distribution of certain funds then available therefor, under residuary clause of will providing that what remained after payment of certain specific legacies and full and complete execution of certain trusts should go to heirs of testator's sisters, decreed that distribution to such heirs should be per stirpes, and no appeal was taken therefrom, such method of distribution became law of case and was applicable when, upon completion of trusts a number of years later, there was a sum therefrom available for distribution as part of residue of estate, notwithstanding that question of whether any of such trust funds might ever become part of residue depended upon contingency of testator's daughter dying unmarried and without issue.

APPEAL directly to Supreme Court by Marion J. Lyons, executrix of the Estate of Anna M. Rentz, from decree of probate court for the district of Rutland, distributing residue from two trust funds, created by will of Samuel H. Griswold, deceased, Harvey R. Kingsley, Probate Judge. The opinion states the case.

Decree of the probate court reversed, and cause remanded for further proceedings and decree not inconsistent with the views herein expressed. Let the appellant recover her costs in this Court. To be certified to the probate court.

Charles B. Adams for the appellant.

Edward Dana for the trustee.

George M. Goddard, Lawrence, Stafford & O'Brien, and Lindley S. Squires for the heirs.

Present: POWERS, C. J., SLACK, MOULTON, THOMPSON, and SHERBURNE, JJ.

OPINION

THOMPSON

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 executors 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 and bequeath to the heirs of my sisters, Margaret and Elisia (both deceased) in equal shares to each of 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 $ 2,259.92; 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 Admr. v. Peck's Admr., 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...