21 Vt. 162 | Vt. | 1849
The opinion of the court wag delivered by
The question for consideration is, whether the appeal was properly dismissed by the county court. The statute, — Rev. Stat., ch. 44, sec. 26, 27, — provides, that the county court shall have appellate jurisdiction of all matters originally within the jurisdiction of the probate court; and that the supreme court shall have jurisdiction of all questions of law, arising in the course of the proceedings of the county court, in probate matters, in the same manner as is provided by law in other cases. It is obvious, that the respective jurisdictions of the county and supreme courts, in probate matters, are essentially and radically different. The jurisdiction of the county court, as an appellate court, is measured only by the extent of the jurisdiction of th.e probat.e co.urt; it is not limited to any
The supreme court, in probate matters, is a court of errors, for the revision of questions of law arising in the county court, the same as in other cases. Questions, which arise in the county court, in such cases, the decision of which depends upon the exercise of the discretion of the court, are not questions of law, and hence can» not be revised in the supreme court. But that the probate court exercises a discretion in any order, or decree, it may make, can form no criterion for determining the right of a party to appeal. The statute has neither expressly, nor by implication, made any such exception to the right. On the contrary, the twenty eighth section of the same chapter declares, that an appeal may be taken from “ any order, sentence, decree or denial of the probate court.”
The practical construction of the statute is believed to have been in conformity to its language. Numerous cases might be met}’ tioned, where appeals have been taken and acted upon in the supreme court, where the questions were merely those of fact, or determinablé only by the exercise of discretion. The amount of personal estate to be set to a widow, — within, perhaps, certain limits, —=is mere matter of discretion. In the selection of a guardian the probate court has no other guide, but that of its discretion, and this discretion has the widest possible range, and yet it is believed no one ever doubted, but that an appeal lay in these and other like eases, and that the decision of the probate court was subject to reexamination and reversal in the appellate court. If, therefore, the granting or denial of the prayer of the petition, in this case, were matter of discretion in the probate court, that formed, of itself, no reason for dismissing the appeal from the county court.
In analogy to all our statute provisions relating to appeals from an inferior to a superior court, the order, sentence, decree, or denial, from which an appeal is to be taken, must doubtless be a final one; — that is to say, it must be a final disposition of the subject matter before the court. Such orders, or denials, as relate merely to the time and mode of proceeding of the court, in arriving at the
It was suggested at a former argument of this case, that the appeal was taken from a decision of the probate court upon a subject not within its jurisdiction, and that therefore the appeal was properly dismissed. If it were a new question, it might, perhaps, be matter for serious consideration, whether the adjudication of the probate court, upon an administrator’s account, should not be held conclusive upon all matters, that might and ought to have been taken into consideration and acted upon ; and whether the balance found due should not be binding on all the parties. The inconvenience and increased expense and delay, which must necessarily attend a farther hearing upon matters, that might have been acted upon at the time of the former decree, doubtless form strong objections to the allowance of such a hearing. But, on the other hand, it is to be considered, that the account of an administrator often embraces a great variety of matters, with which few but himself can be supposed to be familiar, and that the very nature of his trust gives him a great advantage over the heirs and creditors in the adjustment of his account. Hence the necessity has been felt of giving to others, interested in the estate, the right subsequently to charge him with matters not before credited by or charged against him; and even, under peculiar circumstances, to allow of a re-examination and correction of items previously acted upon.
In Rix v. Heirs of Smith, 8 Vt. 365, it was held, that a decree of the probate court in the settlement of an administrator’s account was not conclusive upon any matters, which were not brought under consideration'in the adjustment of his account; and it was also declared by the court, that the probate court might, by a direct proceeding upon a former decree, reconsider and revise its former de
Whatever may have formerly been the views of the different members of the court upon this case, I am authorized to say, that all, who have heard it at the present term, now concur in the opinion, that the probate court had the power to re-open and revise the former decree, so far as to charge the administrators with advancements and-assets not mentioned in the decree, and that the denial' of the prayer of the petition was the subject of an appeal. And we farther concur in the opinion, that the probate courf'had the power, and that it would be the duty of such court, upon the proof of fraud', accident, or mistake, in the adjustment of any items in the former account, to alter and correct it in such manner, as to make it what it ought to have been.
We are not called upon to say, what the probate eourt ought to have done with the petition in this case. The decision of that court,, upon the hearing before it, might have been right. All we say is, that the parties, feeling aggrieved by it, had a right to have the decision reviewed on appeal.
The result is, that the judgment of the county court, dismissing the appeal, is reversed, and the case is remanded to the county-court for farther proceedings-
