Simonds v. Simonds

• Decision Date: 17 May 1922
• Citation: 117 A. 103,96 Vt. 110
• Parties: ROBERT H. SIMONDS v. ARABELLE P. SIMONDS' ESTATE
• Court: Vermont Supreme Court

117 A. 103

96 Vt. 110

ROBERT H. SIMONDS v. ARABELLE P. SIMONDS' ESTATE

Supreme Court of Vermont

May 17, 1922

November Term, 1921.

APPEAL of Herbert E. Powers, individually and as administrator, from a decree of the probate court distributing the estate of Arabelle P. Simonds. Heard at the March Term, 1921, Rutland County, Moulton, J., presiding. Judgment affirming the decree of the probate court. The appellant excepted to certain findings of fact by the county court and to the judgment as rendered. Motion in Supreme Court to dismiss exceptions of Herbert E. Powers as administrator. Motion granted.

Judgment that the appeal and exceptions taken by the administrator are dismissed. Judgment affirmed, with costs to the plaintiff from the appellant Herbert E. Powers individually. To be certified to the probate court.

Marvelle C. Webber for appellant.

Charles L. Howe and Walter S. Fenton for appellee.

Present WATSON, C. J., POWERS, TAYLOR, MILES, and SLACK, JJ.

OPINION

WATSON

This is an appeal from the decree of distribution made by the probate court in the estate of Arabelle P. Simonds, and on exceptions to certain findings of fact by the county court. The appellant and exceptant is Herbert E. Powers as administrator of the estate, also individually. It is conceded that individually he has proper standing in review but it is urged that as administrator he has no such interest in the decree of distribution as is essential by statute to the right of appeal, or of exception. The law here invoked is too well established to require further notice, and the appeal and exceptions, taken by him in his representative capacity, are dismissed. In re Vincent's Estate, 84 Vt. 89, 78 A. 714; Peck's Admr. v. Peck's Admr., 91 Vt. 91, 99 A. 635.

Robert H. Simonds is grandson and only heir at law of Arabelle P. Simonds who died intestate at Pittsford, this State, on the 25th day of January, 1919. On June 14, 1918, the intestate, acting through her agents in this State, and at Pasadena in the State of California, where her grandson then lived, sent a draft, drawn to her order and indorsed by her to the order of her grandson, for the sum of $ 1,327.17, together with a receipt which she instructed to be drawn, the draft to be delivered to him at Pasadena, on his signing the receipt which was to be returned to her agent here. Pursuant to these instructions the draft was delivered to the grandson, and the receipt, signed by him, was returned. The receipt is as follows: "PASADENA, CALIF. June 1918.

"Received from Mrs. Belle P. Simonds, thirteen hundred and twenty-seven 17-100 dollars in full for my share in her estate, $ 1,327.17. ROBERT H. SIMONDS."

The estate of the intestate amounts to several times the sum represented by the draft, and the real question in this case is whether the receipt, given by the grandson, debars him from taking the estate under the statute of distribution and descent. The judgment below was that the sum received by him by way of the draft for which the receipt was given, be added to the residue found by the probate court to be in the hands of the administrator for final distribution in the estate of the intestate, as an advancement to the grandson, and that the latter is not barred from participating in the distribution of the residue of the estate by reason of his receipt given for such advancement. In its essentials the writing given by the grandson to the grandmother, involved in the case at bar, is in form very similar to that given by Moses Robinson, Jr., to his father for money and property received by the son "to be in full of" the father's estate, under consideration in Robinson v. Robinson, Brayt. 59. The report of that case shows that exhaustive briefs were presented to the court on the question of the force of that instrument as a contract or release, excluding the son from a share of the father's estate under the statute of descent and distribution. It was held that the son had no...