Nellie Parkhurst v. Kate Healy's Estate

• Decision Date: 06 December 1923
• Citation: 122 A. 895,97 Vt. 295
• Parties: NELLIE PARKHURST v. KATE HEALY'S ESTATE
• Court: Vermont Supreme Court

122 A. 895

97 Vt. 295

NELLIE PARKHURST v. KATE HEALY'S ESTATE

Supreme Court of Vermont

December 6, 1923

November, 1923.

APPEAL from the probate court for the District of Bennington on petition to renew the commission on the estate of a decedent. Trial by court at the June Term, 1923, Bennington County, Chase, J., presiding. Petition dismissed. The petitioner excepted. The opinion states the case.

Judgment affirmed. Let the result be certified to the probate court.

James K. Batchelder for petitioner.

Collins M. Graves for the estate.

Present: WATSON, C. J., POWERS, TAYLOR, SLACK, and BUTLER, JJ.

OPINION

POWERS

The claimant asserts that she has a valid claim against the estate of Kate Healy, which she was prevented from presenting to the commissioners thereon through accident and mistake. She brought a petition under G. L. 3295 for the relief therein provided, which, after hearing, the probate court dismissed. She then appealed to the county court, and that court having refused her application, she brought the case here on exceptions.

The judgment against her will have to stand. In the first place, such a petition is, by the very terms of the statute, addressed to the discretion of the court. The record before us does not show whether the court below ruled the question presented as a matter of discretion or as matter of law. In these circumstances, it will be presumed that it was ruled as a matter of discretion. State v. Long, 95 Vt. 485, 115 A. 734; Thayer v. Glynn, 93 Vt. 257, 106 A. 834; State v. Felch, 92 Vt. 477, 105 A. 23; Gilfillan v. Gilfillan's Estate, 90 Vt. 94, 96 A. 704; Slack v. Bragg, 83 Vt. 404, 76 A. 148, and cases cited. It not being made to appear that the court's discretion was withheld or abused, there is nothing to review. Whitman v. Dailey, 95 Vt. 454, 115 A. 559; Dyer v. Lalor, 94 Vt. 103, 109 A. 30; French v. Wheldon, 91 Vt. 64, 99 A. 232; Lincoln v. Central Vermont Ry. Co., 82 Vt. 187, 72 A. 821, 137 A. S. R. 998. Questions within the jurisdiction of the probate court, though addressed to its discretion, are subject to re-examination by the county court, but not by this Court. Frost v. Frost's Estate, 40 Vt. 625; Boyden v. Ward's Estate, 38 Vt. 628.

Then, too, the record before us is wholly insufficient. No facts were found below. The county court sits in probate appeals as a higher probate court, and is, in such cases, a fact-finding tribunal; but this court has no such jurisdiction; we sit in error only. Boyden v. Ward's Estate, supra; Hutchinson v. Hutchinson's Estate, 38 Vt. 700; Clark, Admr. v. Clark's Heirs, 21 Vt. 490; Adams v. Adams Estate, 21 Vt. 162. We review questions of law, but the facts must be supplied by the record.