66 Vt. 76 | Vt. | 1894
This is an appeal from an order of the probate court for the district of Fair Haven, accepting and ordering recorded a report of commissioners appointed to set out a homestead and dower to the appellee. The appellee moved to dismiss the appeal, and claimed, among other things, that the appellant was not entitled to an appeal from such order, and that it does not appear that the appellant appealed from any order, sentence, decree or denial of the probate court. It appears from the application for an appeal, filed in the register’s office, that the appellant prayed for an appeal from the order of the probate court approving of the doings of the commissioners, but the certified copy of the order allowing the appeal does not show from what
The county court had power to allow the appellant to file a copy of the amended order of the probate court, allowing an appeal. Maughan v. Estate of Burns, 64 Vt. 316; Whitcomb v. Davenport’s Est., 63 Vt. 656; Wyman v. Wilcox’s Est., 63 Vt. 487; Carruth v. Tighe, 32 Vt. 626. If it was necessaxy to file objections to the doings of the commissioners, or to the order and decree of the probate coux-t, they could be filed or amended in the county court. Francis v. Lathrope, 2 Tyler 372; Howe v. Pratt, 11 Vt. 255; Stevens v. Herwitt, 30 Vt. 262; Bucklin v. Ward, 7 Vt. 195.
Proceedings for setting out a homestead and dower fall within the general jurisdiction of the probate court in the settlement of estates of deceased persons. R. L., s. 2270, gives to any person interested in an oi'der, sentence, decree or denial of the probate court, the right of appeal to the county court. The case of Byram v. Byram, 27 Vt. 295, was an appeal from an order and decree of the probate court, accepting and confirming the x-eport of commissioners appointed by the court to set out a homestead to the widow and children of the deceased. The appellees moved to dismiss the appeal on the ground that the county court had no jurisdiction, and it was held that the appellant was entitled •to an appeal under s. 28, ch. 47, C. S., which is, so far as it relates to the right of appeal, the same as R. L., s. 2270. In True et als. v. Est. of Morrill, 28 Vt. 672, the holding of the court is to the same effect.
The report of commissioners appointed to set out homestead and dower does not become operative or of binding force until it is returned to the court making the appointment, accepted and recorded by that court, and a certified copy thereof recorded in the town clerk’s office where deeds
R. L., s. 1907, provides that where, in a case notin chapter 95 otherwise provided for, it is necessary, in a proceeding at law or in equity, to sever or set out a homestead from other real estate, the court in which such proceedings are pending may appoint three commissioners to appraise and set out such homestead. R. L., s. 1900, provides that commissioners appointed to set out the homestead shall, where a right of dower also exists, first set out the homestead and, from the residue of the real estate of the deceased, set out the dower. Under this section, the commissioners set out a homestead and dower to the appellee and made report of their doings to the probate court, and the same was approved by the court and ordered to be recorded; from this order the appellant was entitled to an appeal to the county court.
Judgment reversed; the appellee's motion to dismiss overruled; cause remanded to county court for further proceedings.