Ricci v. Bove's Estate

• Decision Date: 02 January 1951
• Docket Number: No. 1021,1021
• Citation: 78 A.2d 13,116 Vt. 406
• Parties: RICCI v. BOVE'S ESTATE et al.
• Court: Vermont Supreme Court

Page 13

78 A.2d 13

116 Vt. 406

RICCI v. BOVE'S ESTATE et al.

No. 1021.

Supreme Court of Vermont.

Jan. 2, 1951.

Bloomer & Bloomer, Rutland, for appellant.

Vernon J. Loveland, Hanford G. Davis, Rutland, for appellees.

Before SHERBURNE, C. J., JEFFORDS, CLEARY, and BLACKMER, JJ., and HULBURD, Superior Judge.

JEFFORDS, Justice.

Philip Billings, former executor of the estate of Perry Bove, filed a petition in the Probate Court for the District of Rutland for the recommital of the commissioners' report in that estate. Louis Ricci, as a party interested in the estate, filed a petition moving for the disqualification of George F. Jones, the judge of that probate district to determine the issues raised by the petition of Billings. The grounds for disqualification as set forth are substantially as follows: 1. That Billings was a student and employee in the office of Jones & Jones and that the judge was a member of that firm. 2. That the will of Perry Bove was drawn in that office and a fee received for the service rendered. 3. That in the will Billings was named its executor. 4. That a deed which has caused much litigation and controversy in the estate was drawn by Judge Jones and he was paid for his services in the matter. 5. That the judge, as attorney, formed the Colonial Beverage Company and was an officer, director, and stockholder of the company; that this company has become an important issue in the estate. 6. 'The said George F. Jones has already demonstrated his interest, favor and bias as against the interests of the said Louis Ricci.' 7. That the judge arbitrarily required Ricci to post a $10,000 bond before taking an appeal from a prior decision made in connection with this estate. See Ricci v. Bove's Estate, 116 Vt. 335, 75 A.2d 682.

At the opening of the hearing on the petition for recommittal, the following took place as shown by the recitals in the bill of exceptions which was signed by Judge Jones: The petition for disqualifications was read and Judge Jones requested the attorney for Ricci to submit evidence upon the question. It was then stated that the first witness would be George Jones whereupon the latter raised his right hand. To this procedure Ricci objected and excepted on the ground, in substance, that a witness cannot administer the oath to himself. The attorney for Ricci requested some proper person to be present to preside under the circumstances. Judge Jones then stated that he was the judge and must rule upon his disqualification and, as no evidence had been submitted, the petition would be denied and was denied and the hearing would proceed. The attorney for Ricci then stated that he was not given an opportunity to have one of the persons designated in the statute swear the witness and hear the evidence. The hearing proceeded forthwith notwithstanding the objection of Ricci through his attorney and the report of the commissioners was ordered to be recommitted.

Ricci took exceptions to the decisions, orders, and decrees, the denial of his motion and to the manner and method of procedure as described in the bill of exceptions. The exceptions were allowed and the cause was passed to this Court for a determination of the questions raised by the exceptions.

We have two disqualification statutes which are here pertinent. V.S.1947, § 1269 sets forth grounds which apply generally to judges and other named persons. These grounds, as far as here material, are that a judge shall not act in a judicial capacity in or as trier of a cause or matter in which he has been retained or acted as an attorney or counsel, or is interested in the event of such cause or matter. V.S.1947, § 2803 applies only to probate judges. Its ground for disqualification, here material, is the interest of the judge as a creditor or otherwise in a question to be decided by the court. In the event of such interest it is provided that he shall not act as judge and his duties shall be performed by the register, if not disqualified, or a judge of another district or an assistant judge of the county court of the county in which such district is situated.

The first question for us to determine is the authority of a probate judge to pass, in the first instance, on the question of his disqualification to act as judge in a matter pending in his court. The answer to this question is to be found largely, if not wholly, in the wording of V.S.1947, § 2803. A probate court is a court of limited and special jurisdiction, having only the authority prescribed by statute. Abbott v. Abbott, 112 Vt. 449, 451, 28 A.2d 375; In re Manley's Estate, 112 Vt. 314, 320, 24 A.2d 357.

A reading of V.S.1947, § 2803 shows that until the judge is disqualified he is the sole person to act as judge in any matter pending in his court. Until there has been a disqualification none of the persons named in the statute to perform the duties of the judge in the event of his disqualification would have authority to perform such duties. Any order or decree made by one of them, lacking a prior disqualification of the judge, would be coram non judice and void. Barber v. Chase, 101 Vt. 343, 351, 354, 143 A. 302. It follows, that under the circumstances here appearing, Judge Jones was the only person who had the authority to pass on the question of his disqualification and it was his duty to hear and determine it. The result we have reached is in accord with the general rule at common law as laid down in the decisions of our sister states which is stated in 23 Cyc. at page 596 to be that when a judge sits alone he must determine the question of his disqualification. For illustrative cases see Moses v. Julian, 45 N.H. 52, 84 Am.Dec. 114; Ferguson v. Chapman, Tex.Civ.App., 94 S.W.2d 593; Slaven v. Wheeler, 58 Tex. 23; In re Crawford's Estate, 307 Pa. 102, 160 A. 585; Villego v. Superior Ct., 199 Cal. 408, 249 P. 1084, 48 A.L.R. 610; Ex parte Dew, 7 Ala.App. 437, 62 So. 261; State v. De Maio, 70 N.J.L. 220, 58 A. 173.

V.S.1947, § 1269 has no bearing on the above question as it merely sets forth certain grounds which conclusively disqualify a judge from acting in his judicial capacity in a case.

It should be understood that while a probate judge has the authority to pass on the question of his disqualification in the first instance, his decision is not final as there is the right of appeal from it to the county court or, if only a question of law is involved, an appeal may be taken directly to this Court, under the statutes providing for such appeals.

From the record it appears that Ricci was not afforded a reasonable opportunity to offer testimony in support of his petition. Thus he was denied a full, fair and impartial hearing in the matter, to which he was entitled, and all further proceedings taken by the court were erroneous. Narragansett Racing Ass'n v. Kiernan, 51 R.I. 90, 194 A. 692; Gaskins v. Gaskins, 181 Ga. 124, 181 S.E. 850; Moore v. State, 118 Ohio St. 487, 161 N.E. 532. For this error there must be a reversal and remand unless one or more of the reasons advanced for the affirmance of the order denying the petition to disqualify are found to be sound.

The appellant makes much in his brief of the claim that Judge Jones when he raised his hand was preparing to administer the oath to himself. In view of our previous holding this claim is of no consequence. However, in fairness to the judge we believe we should state that it does not appear to us that he was intending to do what is claimed in this respect. In the original bill of exceptions, after the statement that the judge raised his right hand, there was inserted a clause reading, 'as if in the act of awearing himself as such witness.' This clause was stricken out, presumably by the judge when he signed the bill. Thus it is indicated that he did not intend to administer the oath to himself, an act which of course would be indefensible.

Several reasons are advanced for affirming the order denying the petition to disqualify which merit discussion. One reason is that no sufficient grounds for disqualification are alleged. All of the alleged grounds except number 6 are analyzed and reasons given why, even if true, they, singularly or as a whole, fail to state any cause for disqualification. The sixth ground is attacked because no facts are therein set forth but merely a conclusion. The authorities cited in support of this latter claim have to do largely, if not wholly, with the sufficiency of affidavits required by statute as a basis for the claim of disqualification. It is shown that there is a conflict of authority as to such sufficiency due to the various statutory or constitutional provisions relating to such affidavits. We have no such provisions. The allegation in question was not a mere conclusion of law, nor of the pleader, but of the ultimate facts to be established and thus were properly pleaded. In re Corey's Estate, 113 Vt. 449, 452, 35 A.2d 377, and authorities cited. Moreover, the technical rules of pleading are greatly relaxed in probate matters. In re Estate of Prouty, 105 Vt. 66, 71, 163 A. 536.

It is admitted that if such interest, favor and bias as is alleged be shown...