Whittemore, In re

• Decision Date: 05 October 1954
• Docket Number: No. 21,21
• Citation: 118 Vt. 282,108 A.2d 406
• Parties: In re Diana Lou WHITTEMORE. Gordon W. Whittemore and Fern Whittemore, Appellants. Leonard A. Blakley and Mildred E. Blakley, Appellees.
• Court: Vermont Supreme Court

Page 406

108 A.2d 406

118 Vt. 282

In re Diana Lou WHITTEMORE Gordon W. Whittemore and Fern Whittemore, Appellants Leonard A. Blakley and Mildred E. Blakley, Appellees.

No. 21.

Supreme Court of Vermont.

Oct. 5, 1954.

Ezra S. Dike, Bristol, Vermont, and Lisman & Lisman, Burlington, for appellants.

Francis D. Foley and Joseph C. McNeil, Burlington, for appellees.

Before SHERBURNE, C. J., and JEFFORDS, CLEARY, ADAMS, and CHASE, JJ.

CLEARY, Justice.

This was an appeal to the Addison County court from an adoption decree entered in the probate court for the district of New Haven. The case was heard below without a jury and certain findings of fact were made, to which the appellants took exceptions. Certain motions were then made and exceptions were taken by the appellees to the action of the county court on the motions. The exceptions of both parties were passed to this Court before final judgment under V.S.1947, § 2124.

The appellees have now filed a motion to dismiss the appeal on the ground, not raised below, that the county court was without jurisdiction of the appeal, the appellees claiming that there is no right of appeal from a final adoption decree in probate court.

The motion is properly before us because it questions the jurisdiction of the county court over the subject matter and may be raised at any stage of the proceedings. Town of Bennington v. Vail, 117 Vt. 395, 397, 92 A.2d 467; Harlacker v. Clark, 116 Vt. 107, 111, 70 A.2d 572. In the absence of a constitutional requirement there is no such thing as a right of appellate review independent of a statute granting it. The right is a mere legislative privilege to be granted or withheld as may seem best to the law-making body. State v. Ploof, 116 Vt. 93, 97, 70 A.2d 575. A fortiori there can be only a statutory right of appeal from probate court, this being a court of special and limited jurisdiction, deriving all its authority from the statute. It follows that the probate court has only such authority to allow an appeal as is given by the statute. Otherwise, no appeal may be taken. In re Will of Prudenzano, 116 Vt. 55, 60, 68 A.2d 704; Roddy v. Fitzgerald's Estate, 113 Vt. 472, 475, 35 A.2d 668; In re Walker Trust Estate, 112 Vt. 148, 151, 22 A.2d 183.

The statutes originally provided 'that the county court shall have appellate jurisdiction of all matters originally within the jurisdiction of the probate court' and 'Any person interested in any order, sentence, decree or benial of any probate court, who considers himself injured thereby, may appeal to the county court.' Adams v. Adams, 21 Vt. 162, 164, 165. In the Revision of 1880 the word 'all' was omitted and the word 'an' substituted for 'any' before the word 'order'. However, this did not necessarily alter the law. Changes made in a revision will not be taken to alter the law as construed by previous decisions, unless an intention to do so is clearly manifest. Clark v. Powell, 62 Vt. 442, 444, 20 A. 597; Whitcomb v. Davenport's Estate, 63 Vt. 656, 658, 22 A. 723; Town of Brighton v. Kelsey, 77 Vt. 258, 261, 59 A. 833; Stearns v. Graham, 83 Vt. 111, 114, 74 A. 486; Cuthbertson v. Ritchie, 99 Vt. 50, 54, 130 A. 756; In re Blake, 107 Vt. 18, 26, 175 A. 252; State v. Howard, 108 Vt. 137, 143, 183 A. 497.

The present statute which provides for appeals to the county court from the probate court is V.S.1947, Chap. 149. Sec. 3087 of that chapter reads as follows: 'The county court shall have appellate jurisdiction of matters originally within the jurisdiction of the probate court, except as herein in otherwise provided.' Sec. 3090 provides as follows: 'Except as otherwise provided, a person interested in an order, sentence decree or denial of a probate court, who considers himself injured thereby, may appeal therefrom to the county court'.

The appellees claim that the plain inference from the language used in the pertinent sections of the adoption statute is that an adoption decree once issued by the probate court is final and that the phrase 'final adoption decree' used in V.S.1947, Chap. 420, the adoption statute, evidences a legislative intention that such decrees are not subject to appeal. The test of whether a decree or judgment is final as generally laid down by this Court is whether it makes a final disposition of the subject matter before the court. In re Estate of Webster, 117 Vt. 550, 552, 96 A.2d 816. It is only from a final order, decree or denial of the probate court that the statute permits an appeal. Kimball v. Kimball, 19 Vt. 579, 580; Adams v. Adams, 21 Vt. 162, 165; Leach v. Leach, 50 Vt. 618, 619; Wilcox v. Wilcox, 63 Vt. 137, 138, 21 A. 423; Fillmore, Adm'r v. Estate of Morgan, 93 Vt. 491, 492, 108 A. 840; Bianchi v. Martin, 94 Vt. 160, 162, 109 A. 37; In re Estate of Taylor, 110 Vt. 80, 85, 2 A.2d 317. So no inference can be drawn that the use of the word final in the adoption statute evidences a legislative intention that such decrees are not subject to appeal.

V.S.1947, Chap. 420, § 9946, as amended by Acts of 1949, No. 231, § 1, provides as follows: 'When a final adoption decree is made, it shall be and remain in full force and effect until vacated or annulled in the manner provided in this chapter.' Sec. 9955 is entitled 'Annulment' and requires that the department of social welfare and a...