Flory v. Flory's Estate , 98 Vt. 251 ( 1925 )

This is an appeal from the decision of the probate court for the District of Fair Haven allowing Hannah Flory, the widow of Adolphus Flory, deceased, an extension of time for waiving the pecuniary provisions made for her in her husband's will. An appeal was taken from the decision by the executor of the estate to the Rutland county court. In the latter court the widow moved to dismiss the appeal on the ground that the executor had no such interest in the estate as is essential by statute to the right of appeal; that the executor's appeal raised the question of jurisdiction in the county court, for if the appeal was not within the right of the executor by statute, it could not give that court jurisdiction. The motion was denied and the widow excepted. Thereupon the cause was passed to the Supreme Court under the statute before final judgment. The question being raised by motion to dismiss, it must be determined on what appears of record. Tracy v. Grand Trunk Ry. Co., 76 Vt. 313, 57 A. 104.

The petition of the executor praying for an appeal sets forth that he is the duly qualified executor of the last will and testament of Adolphus Flory, deceased, "and as such executor is interested in his estate." That "as executor," he "objects to the judgment and order of the said court on the ground that said widow was barred by the Statute of Limitations and that such judgment and order was contrary and against the weight of the evidence." The record contains nothing showing or alleging that Pelkey has any interest in the estate as an individual, or otherwise than in his representative capacity as executor. In such capacity he has no legal right or liability affected by the decree and judgment from which the appeal was attempted to be taken. He therefore had no right of appeal under the statute, and his attempt in this respect could give the county court no jurisdiction of the matter. The denial of the motion to dismiss was error. In re Vincent's Estate, 84 Vt. 89, 78 A. 714; Peck's Admr. v. Peck's Admr., 91 Vt. 91, 99 A. 635; Simonds v. Simonds' Estate, 96 Vt. 110, 117 A. 103, 28 A.L.R. 420.

Judgment reversed, and appeal dismissed with costs to thepetitioner. To be certified to the probate court. ^*After the foregoing opinion was handed down the appellant, the executor, by leave of court, filed his motion to amend the mandate so to read as follows: "Judgment reversed and cause remanded with instructions that leave be granted appellant to procure and file amended appeal copies and for further proceedings in the county court, with costs in this court to the petitionee-appellee."

The statute provides that a person interested in an order, sentence, decree or denial of a probate court, "may, except as otherwise provided, appeal therefrom to the county court, if application in writing therefor is made and filed in the register's office within twenty days from the date of the decision appealed from." G.L. 3455. And when such an appeal is taken the appellant shall file in the county court to which the appeal is granted "a certified copy of the record of the proceedings appealed from, of the application for and the allowance of the appeal" with evidence of notice to the adverse party, etc. G.L. 3465; Lynde v. Davenport, 57 Vt. 597. It is to be presumed that the probate court correctly performed its duty in this regard, and that the certified copies furnished by it to the appellant for the purpose of the appeal in question were true copies of record, and of the application, nothing to the contrary appearing. Indeed, nothing to the contrary is asserted in the motion or in support thereof.

As the appeal copies were correctly certified, it is not apparent how they can be amended.

Motion denied.

^* Opinion on motion to amend mandate filed February 4, 1925.