Trask v. Trask's Estate
| Decision Date | 13 February 1926 |
| Court | Vermont Supreme Court |
| Parties | TRASK v. TRASK'S ESTATE. |
Exceptions from Washington County Court; Frank L. Fish, Judge.
Proceeding by William H. Trask against the estate of George J. Trask for allowance of a claim which the commissioners disallowed. Judgment entered for defendant, and plaintiff excepts. Affirmed and certified to the probate court.
Argued before WATSON, C. J., and POWERS, TAYLOR, SLACK, and BUTLER, JJ.
Edward H. Deavitt and Burton E. Bailey, both of Montpelier, for plaintiff.
Webster E. Miller, of Montpelier (George L. Hunt, of Montpelier, of counsel), for defendant.
This is an appeal from the disallowance of plaintiff's claim by the commissioners on the estate of George J. Trask. The complaint is in the common counts in assumpsit; plea, the general issue; trial by court; judgment, on the facts found and stated, for defendant.
The plaintiff insists that on the findings he is entitled to a judgment, and consequently that the court erred in giving judgment for the defendant. This is the only ground upon which a reversal is sought.
The defendant contends that the validity of the judgment cannot be challenged under any exception shown by the record, and this would seem to be so. It appears inferentially from the statement in the bill of exceptions, "Exceptions by appellant allowed," that plaintiff took some exceptions, but what they were, whether to the admission or the exclusion of evidence, to the findings, or to the judgment does not appear. It is claimed by plaintiff on oral argument that the docket entries show an exception to the judgment. Be that as it may, it cannot avail him in the circumstances disclosed by the record. Exceptions noted on the docket stand no differently than exceptions noted in the transcript. Either to be availing must be brought into the record by a bill of exceptions signed by the presiding judge and filed with the clerk in accordance with the requirements of the provisions of G. B. 2258. In the instant case, the exception relied upon is not noticed in the bill of exceptions, nor is reference there made to the docket entries, where it is claimed such exception is to be found. In these circumstances it must be held that there is no legal question before us. Stilphen v. Reed, 23 A. 725, 64 Vt. 400.
But were the plaintiff entitled to the benefit of this exception the result would be the same. It appears from the findings that he was the son and only heir of George J. Trask; that at the time of George J.'s death he owed two promissory notes upon which he had received the proceeds, which were afterwards paid by plaintiff. We quote all that further appears concerning these notes:
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...which is not a necessary inference from the facts found.” Adams v. Ladeau, 84 Vt. 460, 464, 79 A. 996, 997. See also, Trask v. Trask's Estate, 99 Vt. 353, 355, 132 A. 136; Powell v. Merrill, 92 Vt. 124, 131, 103 A. 259. Furthermore, the principle of estoppel does not apply when the facts ar......
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