156 A. 393 | Vt. | 1931
Edward H. Everett, of Bennington, died testate, leaving him surviving a widow, Grace Burnap Everett, and two minor daughters, Grace Elizabeth Everett and Sarah Everett (these two minors being the plaintiffs herein), and three daughters by a former marriage, Amy Wing, Mary E. Turri, and Ann E. Seldon, the defendants herein. His will was *491 presented for probate to the probate court for the District of Bennington, and an order for the statutory notice by publication was made and complied with. Thereafter, on hearing, the probate court adjudged that the will was duly proved, and allowed the same as the last will and testament of the deceased. The three defendants appealed from this decree to the county court. The probate court appointed as special administrators, pending the outcome of the appeal, the three executors named in the will, Grace Burnap Everett, George R. Colby, and The American Trust Company, of New York City, and in addition to them, William A. Root, and ordered that notice of the appeal should be given to them by the appellants, which order was duly complied with. The required bond was filed and the appeal was entered in the Bennington county court under the title "In re Estate of Edward H. Everett, Grace Burnap Everett, George R. Colby, American Trust Company and William A. Root, special administrators, proponents; Amy Wing, Ann Everett Seldon and Mary Turri, contestants and appellants." After a trial by jury the verdict was in favor of the contestants that "the instrument presented for probate is not the last will and testament of the said Edward H. Everett." The proponents' motion to set aside the verdict was denied, judgment was entered on the verdict, and the cause is now pending before this Court upon proponents' exceptions.
After all this had taken place, but within the time allowed by G.L. 2273, the plaintiffs, by their next friend, brought this writ of error returnable to this Court, under the provisions of G.L. 2267 and 2268. In pursuance to an order signed by one of the Justices of this Court, the clerk of Bennington county court has transmitted to us the record, files, and process in the cause above referred to, together with the writ in this case.
The assignments of error contained in the writ are that, since the plaintiffs were legatees under the will, and heirs at law of their deceased father, they were necessary parties to any proceedings touching the probate of the will, and entitled to notice and service of process; that they had no notice, and no process was served upon them or upon anyone in their behalf, concerning the proceedings in the Bennington county court; that it nowhere appears of record that they appeared in or were made parties to such proceedings, which were litigated between the persons appointed as special administrators, as proponents, *492 on the one hand, and the three daughters above named, as contestants, on the other; or that a guardian ad litem was appointed for them; and that therefore the process upon which the judgment was rendered by the county court and the judgment itself were void.
In this State the probate of a will is a proceeding in rem,
being in form and substance upon the will itself to determine its validity. The judgment determines the status of the instrument, whether it is or is not the will of the testator. When the proper steps required by law have been taken the judgment is binding upon everybody, and makes the instrument as to all the world just what the judgment declares it to be. Woodruff v. Taylor,
Such notice by publication in proceedings of this kind is not a denial of due process of law under the Fourteenth Amendment to the United States Constitution. Security Savings Bank v.California,
On appeal from the probate court the county court sits as a higher court of probate, with coextensive jurisdiction. In rePartridge's Estate,
It is clear that under our practice an appeal to the county court from the allowance of a will by the probate court is not a new and independent proceeding required to be commenced by a new notice or service of process, but simply a continuation of that already commenced in the probate court. It is the extension of the right to contest the will which existed upon the original hearing. Allen v. Pugh,
The plaintiffs herein have no cause to complain. Legal and sufficient notice was given them by publication when *495 the will was first presented for probate. Nothing further was required. The proper steps, as required by law, have been taken, and none of their legal rights have been infringed.
Neither is there merit in the contention that a guardian adlitem should have been appointed by the county court. The plaintiffs had not made themselves parties of record. Doubtless the court might have appointed such a guardian for them as being interested in the subject-matter in question (G.L. 3649) had the matter been brought to its attention, as does not appear to have been done by anyone. But, in the absence of a specific statutory requirement to that effect, a guardian ad litem is not necessary in proceedings for the probate of a will. Mousseau's Will,
Writ of error dismissed, with costs.