Melen v. First Vermont Bank & Trust Co. , 144 Vt. 226 ( 1984 )

Underwood, J.

This appeal challenges a judgment of the Rut-land Superior Court involving the estate of Raymond S. Seward. The superior court was presented with an appeal from an order of the Rutland District Probate Court that allowed Raymond Seward’s will. It also had before it for consideration a petition for declaratory judgment, in which appellants challenged the validity of Raymond Seward’s marriage and the validity of a trust amendment executed by him. The probate appeal and the declaratory judgment action were consolidated below. V.R.C.P. 42 (a). A jury was drawn to hear the de novo trial of the probate appeal. Following that phase of the consolidated proceedings, the court directed a verdict allowing the will. That decision is not challenged on appeal.

We must, however, reverse and remand the declaratory judgment. The record indicates that the one available assistant judge participated in the hearing on the petition for declaratory relief involving the trust and the marriage. Equity has jurisdiction to hear and determine matters relating to trusts. Wade v. Pulsifer, 54 Vt. 45, 69 (1881); Congdon v. Cahoon, 48 Vt. 49, 52 (1875). “Trusts are, and have been since they were first enforced, within the peculiar province of courts of equity.” 3 A. Scott, Scott on Trusts § 197, at 1625 (3d ed. 1967); see G. Bogert, The Law of Trusts and Trustees § 870 (rev. 2d ed. 1982).

Since the petition below asked for a declaration on the validity of the trust as well as the marriage, the superior court’s equitable jurisdiction was invoked. The court that sat and heard this petition and that signed the findings, conclusions and judgment was comprised of the presiding judge and one assistant judge. Under 4 V.S.A. § 219 we have held that such a court is without jurisdiction to hear a matter in equity. Soucy v. Soucy Motors, Inc., 143 Vt. 615, 471 A.2d 224 (1983); Pochette v. LaDuke, 139 Vt. 625, 627, 432 A.2d 1191, 1192 (1981).

Reversed and remanded as to the declaratory judgment determining the validity of the trust and marriage.