Roy C. Abbott v. Bessie W. Abbott, Individually And As Administratrix of the Estate of Russell C. Abbott

• Decision Date: 06 October 1942
• Parties: ROY C. ABBOTT v. BESSIE W. ABBOTT, INDIVIDUALLY AND AS ADMINISTRATRIX OF THE ESTATE OF RUSSELL C. ABBOTT
• Court: Vermont Supreme Court

28 A.2d 375

112 Vt. 449

ROY C. ABBOTT v. BESSIE W. ABBOTT, INDIVIDUALLY AND AS ADMINISTRATRIX OF THE ESTATE OF RUSSELL C. ABBOTT

Supreme Court of Vermont

October 6, 1942

May Term, 1942.

1. Nature of Action under P. L. 2859.----2. Same.---3. Moneys Held under P. L. 2861 are for Distribution Only.---4. Jurisdiction of Probate Courts.---5. Same.---6. Jurisdiction of Probate Courts over Moneys Held under P. L. 2859.---7. Moneys held under P. L. 2859 Are Held in Trust.---8. Probate Courts Have Equity Powers over Trust Funds in Estates.---9. Completed Trusts Enforceable in Law Courts.---10. Until Administration Completed Action at Law Does not Lie.

1. The right of action given by P. L. 2859 is not related to any rights of the deceased in his lifetime, but is for the designated beneficiaries to compensate them for the loss sustained by them.

2. The right of action given by P. L. 2859 arises from injury to the deceased, which, if he had survived, would have given him a cause of action.

3. Under P. L. 2861 any moneys recovered by an administrator under P. L. 2859 are assets in his hands, not to pay debts of the deceased, but only for distribution to those entitled thereto.

4. A court of probate has only the special and limited jurisdiction given by statute, and nothing is to be presumed in favor of it.

5. A court of probate has full and exclusive jurisdiction in the settlement of estates of deceased persons.

6. Moneys recovered under P. L. 2859 must be administered under the supervision of the probate court.

7. Although the administrator holds moneys recovered under P. L 2859 as trustee, the execution of that trust in all its details must be overseen by the probate court and determined by decree of that court.

8. The probate court has general equity powers over trust funds pertaining to the estates of deceased persons.

9. An action at law lies to compel payment of trust funds when all purposes of the trust have been fulfilled.

10. Prior to decree of the probate court, moneys recovered under P. L. 2859 are held under a trust not yet terminated, and an action at law may not be maintained by a beneficiary for the recovery thereof.

CONTRACT ACTION to recover moneys recovered and held by defendant under P. L. 2859 and P. L. 2861. Defendant demurred, demurrer sustained, judgment for defendant. Rutland County Court, September Term, 1941, Black, J., presiding.

Judgment affirmed.

Bove Billado & Dick for plaintiff.

Asa S. Bloomer for defendant.

Present: MOULTON, C. J., SHERBURNE, BUTTLES, STURTEVANT and JEFFORDS, JJ.

OPINION

MOULTON

This is an action at law, brought under the provisions of P. L. 2178, to recover money alleged to be held by the defendant in a fiduciary capacity. It comes before us on the plaintiff's exception to the ruling of the trial court sustaining a demurrer to the complaint and entering judgment for the defendant.

The substance of the complaint is that the plaintiff and defendant are the only surviving next of kin of Russell C. Abbott, deceased; that the defendant is the duly appointed administratrix of his estate; that, as such administratrix, she brought an action for the benefit of herself and other next of kin against Arzy H. Noyes, alleging that the death of her intestate was caused by the latter's wrongful act; that the action was settled by the payment to her of the sum of $ 4000, which she received in a fiduciary capacity; and that, although often requested, she has neglected and refused to pay to the plaintiff his proportionate share thereof. The demurrer is upon the ground that the matter involved pertains to an accounting by the defendant as administratrix and therefore lies within the exclusive jurisdiction of the probate court by which she was appointed.

The action against Noyes, in settlement of which the money was obtained by the defendant, was brought under the provisions of P. L. secs. 2859, 2860 and 2861. By sec. 2860 the sum recovered is for the benefit of the next of kin, who are to receive the same proportion thereof as in the distribution of the personal estate of a person dying intestate. By sec. 2861 the sum recovered is not an asset in the hands of the administratrix but must be paid over to the persons entitled thereto, after deducting or being paid the costs and expenses of prosecution. It is clear, therefore, that the defendant must account to the plaintiff for his proportionate share of the amount in her hands. The question is whether the allegations of the complaint present a case in which recovery can be had in an action at law in the County Court.

The right of action given by P. L. 2859 is entirely independent of and unrelated to any that the deceased may have had in his lifetime, and is vested in his executor or administrator for the benefit of certain designated beneficiaries. The recovery is not based upon an injury to the decedent's estate but upon the loss sustained by those for whose benefit the action is brought. Brown, Admr. v. Perry, 104 Vt 66, 69, 156 A. 910, 77 A.L.R. 1294. The right arises from an injury to the deceased which gave, or, if death had not ensued, would have given him a cause of action. Berry v. Rutland R. R. Co., 103 Vt. 388, 391, 154 A. 671. But the provision of P. L. 2861 that the sum recovered shall not be an asset in the hands of the administrator must be taken to mean only that it shall not be an asset subject to the payment of the decedent's debts; it is an asset created by statute for purposes of distribution to those entitled to share in it. Berry v. Rutland R. R. Co., supra, 391-2. In the case just cited it was held that the statutory...