Kendrick v. Harris

1 Aik. 273 | Vt. | 1826

The opinion of the Court was delivered by

Skinner, Ch. J.

No precise form of excepting to the order or decree of the judge of probate in case of appeal, has been established by the Court. It is necessary that every substantial averment upon which the party relies, should be made; and such as are not denied will of course be considered as admitted • by the opposite.party. Though no issue for a jury can be formed in case of appeal from the decree of the judge, excepting from the probate of a will, it is necessary the attention of the parties and the court should be directed and confined to particular points, and that the questions made and decided should distinctly appear upon the record.

In this case, the first exception cannot be noticed, as no appeal was taken from the decree of the judge appointing the commissioners.

The second and third exceptions may as well be considered together, and they are well founded. It is the duty of the court of probate, in his commission to the commissioners appointed to set out the widow’s dower, particularly to describe all the real estate of which the husband died seized in his own right, and it is the duty of the committee to appraise the same. And without a view of the premises, no such appraisal can be made by them, as the law contemplates. The persons interested are supposed to rely upon, and have a right to claim the exercise of their judgments, as well as to the value of the estate as to what particular part thereof is most suitable and proper to be set apart for the use of the widow. The committee are not at liberty to take the former appraisal for their guide, nor to rely exclusively upon the testimony or opinion of others. The proceeding in this case has been improper, and the law will not presume justice has been done.

C. Langdon and Ch. K. Williams, for the appellants'. Wm. Page and R. B. Bates, for the appellee.

The decree of the judge of probate, therefore, must he set aside, &c.