Green v. Clark

| Vt. | Jan 15, 1852

The opinion of the court was delivered by

Rgyce, Ch. J.

This was an appeal from a decree of the probate court, appointing Alanson M. Clark administrator upon the estate of Thomas Clark. And the question presented by the pleadings is, whether an administrator for general purposes could legally be appointed, before the decision of the county court upon a former appeal, disallowing the will of Thomas Clark, was certified to the probate court.

The statutes regulating appeals from probate courts have uniformly required that the final decision consequent upon an appeal shall be certified back to the probate court; and that the subsequent action of the probate court shall be in conformity to such decision. This latter requirement indicates the reason and ground of the former. Where the decision of the appellate court embraces various subjects, or is qualified by special limitations or conditions, the probate court might be unable, without the certificate, or other evidence from the record equally full and authentic, to conform its action to the law of the case as settled upon the appeal. And we consider that the certificate was enjoined to obviate such embarrassments, rather than to restore jurisdiction to the probate court, or to furnish notice to that court of the general result of the appeal. ' It may be further remarked, that no statute has declared the effect, in case the judgment is not so certified. "We therefore incline to the opinion, that the want of such a certificate is in no case a legal bar to proceedings in the probate court, though upon subjects affected by the decision of the appellate court; that although it may occasion embarrassment; the court can nevertheless act with effect, if its action is warranted by the law and fact as they really exist at the time.

In this instance, it is true, that whilst the former appeal was pending in the county court, or until the invalidity of the will was judicially settled, none but a special administrator could be appointed to collect and take charge of the estate for the time being. But a final decision against the will, which was the 'only matter involved in the appeal, had been regularly made, some eight years before the appointment now contested. After that decision the condition of the estate was not adapted to a special and limited administration, the occasion for which had passed, but demanded one with the ordinary powers and responsibilities. And under the circumstances, we think the probate court could rightfully grant the administration which was needed, though the judgment annulling the will had not been certified to that court in obedience to the statute.

Judgment of the county court affirmed.