Maude O'rourke v. Walter H. Cleary

• Citation: 158 A. 673,104 Vt. 312
• Parties: MAUDE O'ROURKE v. WALTER H. CLEARY ET AL
• Decision Date: 04 February 1932
• Court: United States State Supreme Court of Vermont

158 A. 673

104 Vt. 312

MAUDE O'ROURKE v. WALTER H. CLEARY ET AL

Supreme Court of Vermont

February 4, 1932

January Term, 1932.

Wills---Requisite to Construction by Court of Chancery under G. L 3228---Courts---G. L. 3405 Subdv. II---Statutes---Construction---G. L. 3228 Not Repealed by Uniform Declaratory Judgments Act---Repeal of Statute---Statute To Be Construed According to Its Purpose---Sufficiency of Facts To Give Court of Chancery Jurisdiction To Construe Will---Presumption That Chancellor Proceeded under Chancery Rule.

1. For court of chancery to take jurisdiction under G. L. 3228 in construing will, it must appear that some substantial end will be accomplished by such court, that probate court cannot seasonably and adequately handle question, and that resort to court of chancery is reasonably necessary.

2. Language of G. L. 3405, subdv. II, while clearly conferring upon probate court jurisdiction to determine whether bequest in will to his widow was intended to be in lieu of her statutory right to one-third in value of real estate of which he died seized in his own right, held not specific grant of exclusive power and not to preclude court of chancery from construing will under authority contained in G. L. 3228 which was later enactment.

3. If two statutes pertaining to same subject-matter are in conflict, later will modify earlier statute.

4. Uniform Declaratory Judgments Act (Acts of 1931, No. 37) held not to repeal either expressly or by implication, G. L. 3228 giving court of chancery authority to construe will under certain circumstances therein specified.

5. Statute will not be construed as repealing former act on same subject, in absence of express words to that effect, unless they are so inconsistent that they cannot stand together, or unless later act is intended to supersede former, and to comprise in itself sole and complete system of legislation on that subject.

6. Statute is to be construed with reference to its purpose.

7. Where husband made bequest to wife in will, and in regular course of administration probate court would not construe will and determine whether bequest was in lieu of widow's statutory right until final decree of distribution, at which time widow's right of election, if it was necessary for her to make one, would have passed, held that widow was entitled, under G. L. 3228, to have court of chancery construe will and determine question, uncertain situation confronting widow presenting typical case for intervention of court of chancery in aid of probate court.

8. Where testator's widow by bill in equity made application to court of chancery under G. L. 3228, to construe his will and determine whether bequest therein to her was in lieu of her statutory right, and defendants demurred to bill, which demurrer was overruled by chancellor without ordering defendants to answer, and without taking any extrinsic evidence as to circumstances surrounding testator at time will was made to aid in determin- ing testator's intention, Supreme Court will assume, nothing appearing to contrary, that chancellor proceeded under chancery rule 17, treated bill as confessed, and entered decree in order to send case to Supreme Court for determination of law questions raised by demurrer before trial on merits.

APPEAL IN CHANCERY. Plaintiff, widow of Thomas Francis O'Rourke brought a bill in chancery under G. L. 3228 to have will of her late husband construed to determine whether bequest therein to her was in lieu of her statutory rights. Defendants demurred and moved to dismiss, on ground that court of chancery had no jurisdiction. Heard on pleadings, at the September Term, 1931, Orleans County, Buttles Chancellor. Demurrer and motion overruled, and decree construing will to make bequest in addition to widow's statutory rights. The defendants excepted and appealed. The opinion states the case.

Decree reversed pro forma, and cause remanded. Let the plaintiff recover costs in this Court.

Walter H. Cleary and David E. Porter for the defendants.

J. W. Redmond and Pierce & Miles for the plaintiff.

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

OPINION

GRAHAM

This is a bill in chancery, brought under G. L. 3228, enacted as No. 40, Acts of 1896, for a construction of paragraph eight of the will of Thomas Francis O'Rourke, late of Derby deceased, which is as follows: "If I should die possessed of any real estate in Newark, N.J., I give, grant, devise and bequeath the same to my now intended wife, Maude Delaney of Newark, N.J., and I also give and bequeath to her all household goods, house furnishings and all contents of any house or apartment that may belong to me or may be occupied by us in Newark, N.J.; and I give and bequeath to the said Maude Delaney the sum of twenty-five thousand dollars ($ 25,000.00) all of the above to be to her and her heirs forever."

The bill alleges, in substance, that the testator died on January 29, 1931, at Derby Line, where he had resided for many years; that on November 21, 1928, he duly executed his last will and testament, which has been duly probated as such by the probate court for the District of Orleans, this State, wherein the settlement of the estate is still pending; that defendants Cleary and the National Bank are the duly appointed executors of testator's will; that at the time of the execution of the will, the plaintiff was engaged to be married to the testator, and she is the Maude Delaney mentioned in the eighth paragraph of the will; that on November 27, 1928, the plaintiff and testator were married; that at the time of this marriage, the testator had a son by a former marriage, who is defendant Thomas Nelson O'Rourke, and who is the only surviving child of the testator; that testator never owned any property in New Jersey; that the assets of the estate, as shown by the inventory filed in probate court, are valued at $ 170,988.87, and, in addition, there are assets of the value of $ 36,402.62, the ownership of which by the estate may be questioned; that the claims allowed against the estate aggregate $ 6,830.37.

The bill further alleges that the force and legal effect of the bequest under the last clause of said paragraph eight, namely, "I give and bequeath to said Maude Delaney the sum of twenty-five thousand dollars ($ 25,000.00) all of the above to be to her and her heirs forever," is doubtful and in dispute, the question being whether the $ 25,000.00 given plaintiff by that bequest is in addition to her statutory rights as surviving widow, or whether it is in lieu of such statutory rights; that if the bequest is in lieu of such statutory rights an election is required by plaintiff, and that plaintiff cannot intelligently decide whether she shall elect to take the bequest or to waive the same and claim her statutory rights, unless and until she has an authoritative construction of the will in the respects above indicated.

The defendants demurred to the bill on the ground that the court of chancery had no jurisdiction. The same question was raised by motion to dismiss. The demurrer and motion were overruled, subject to defendants' exceptions. Solely on the facts alleged in the bill and admitted by the demurrer, decree was entered, subject to defendants' objections and exceptions, that plaintiff takes the bequest in addition to her statutory rights as surviving widow, and not in lieu thereof, and that she is not required to make an election. The defendants have appealed, and the case is before us on the appeal and exceptions.

The defendants challenge the jurisdiction of the court of chancery upon two grounds, (1) that the subject-matter of the bill is within the exclusive jurisdiction of the probate court, and (2) that an adequate remedy is provided by the regular course of administration of the estate in probate court, and also by the Uniform Declaratory Judgments Act.

Before the enactment of No. 40, Acts of 1896, it was the uniform holding of our decisions that equity will not interfere in the settlement of estates, so long as there is an adequate remedy in the probate court. Davis v. Eastman, 66 Vt. 651, 30 A. 1. In Powers v. Powers' Estate, 57 Vt. 49, it is said: "Our probate code has grown up into a system by itself, the leading idea of which is to confer upon the Probate Court exclusive jurisdiction in the settlement of estates." In Blair v. Johnson's Heirs, 64 Vt. 598, 24 A. 764, this Court said, that the jurisdiction of the court of chancery in the settlement of estates is not original, but special and limited, and only in aid of the probate court when the powers of that court are inadequate; that if the construction of a will is to be decided and the jurisdiction of the probate court is adequate for the purpose, that court must be resorted to and chancery cannot be.

G. L 3228 (No. 40, Acts of 1896) reads as follows: "In cases where the terms of a will are doubtful or in dispute, a person interested in the estate, either as legatee, devisee or heir at law, may bring a bill in chancery to have the will construed; and the court of chancery, or the supreme court on appeal, shall proceed to construe the will; and such decision shall be binding on parties who are served with process and all who appear in the cause by counsel, notwithstanding it appears that others may at some future time become interested under the will." This statute first came before this Court for construction in Harris v. Harris, 79 Vt. 22, 64 A. 75, 77. It was held in that case that the act still left with the court of chancery some discretion as to taking jurisdiction; that it must decide whether any terms of the will are in such doubt as to require the intervention of the court of chancery for the purpose of giving them proper...