| Vt. | Oct 15, 1884
Lead Opinion
The opinion of the court was delivered by
This action was brought under No. 82 of
Before the passage of that law there was no statute remedy for an heir of an intestate estate who had been left out in the distribution of the estate to recover his share, or compensation therefor. That law provides, that where a person entitled to a distributive share of such an estate is absent and unheard of for fifteen years, five of which are after the death of the intestate, the Probate Court may order such share to be distributed among his lineal heirs, if he have any; otherwise among the heirs of such deceased person. It is claimed by the defendants that the requirements of the law were not so observed by the Probate Court as to justify the making of such an order.
The law required that before any such order was made the court should cause notice to be given as notice is given on the settlement of an administrator’s account, and such other notice, by publication or otherwise, as the court might deem proper. The notice required before the settlement of an administrator’s account is to be given personally to such persons as the Probate Court should judge to be interested, or by publication under the direction of the court of the time and place of allowing the same. R. L. s. 2106. The record of the Probate Court shows that personal notice was ordered to be given to the heirs of Catherine Driscoll, if living within this State, of the time and place when and where the application for distribution would be heard, and that such notice was given, and that public notice was given by publication in the St. Albans Messenger. The notice thus shown to have been given was legally sufficient.
It was necessary that the court should find that the absent heir had been absent and unheard of for fifteen years, five of which were after the death of the intestate. That fact,
It is claimed that these findings, and the recitals that appear in the record, are not conclusive. Probate courts in this State are courts of record; and judgments rendered by them upon matters -within their jurisdiction to determine, unappealed from, are conclusive. To give the court jurisdiction over the absent heir’s share in the estate, it was necessary, after proper notice given, that the fact of the absence of the heir for the time specified should be found by the court; so that the court in making such finding was discharging a duty imposed by the law, and its finding must be held to be ■conclusive. The court, then, having acquired jurisdiction over said share, the order made divested the heir of all legal claim to the estate, and vested the same in the defendants. Grice v. Randall, 23 Vt. 239" court="Vt." date_filed="1851-01-15" href="https://app.midpage.ai/document/grice-v-randall-6574498?utm_source=webapp" opinion_id="6574498">23 Vt. 239; Stone v. Peasley's Est. 28 Vt. 716" court="Vt." date_filed="1856-03-15" href="https://app.midpage.ai/document/stone-v-estate-of-peasley-6575983?utm_source=webapp" opinion_id="6575983">28 Vt. 716.
The defendants having elected to have the share of the heir distributed to them jointly, and having taken the title jointly, cannot now excuse themselves from joint liability.
It is also claimed that the defendants, having acquired their interest in the estate of Catherine Driscoll by purchase, before the passage of the law of 1870, their rights are not affected by that law. The answer to this claim is, that they acquired their title under the order of the Probate Court made after the passage of that law, and made in pursuance thereof; and the liability is imposed upon those “to whom such share has been distributed under such an order.”
The defendants cannot avail themselves, as a defence, of the fact that the intestate was an alien. She had the undoubted right to purchase and hold lands, and if forfeited on account of her alienage the forfeiture was to the State; and the State alone could assert a right to them. Gilman v. Thompson, 11 Vt. 643" court="Vt." date_filed="1839-08-15" href="https://app.midpage.ai/document/gilman-v-thompson-6572258?utm_source=webapp" opinion_id="6572258">11 Vt. 643; Cross v. DeValle, 1 Wall. 5" court="SCOTUS" date_filed="1863-12-01" href="https://app.midpage.ai/document/cross-v-de-valle-87547?utm_source=webapp" opinion_id="87547">1 Wall. 5.
The title to the share to which Mary Lenehan would have been entitled having vested in the defendants, a right of
The language of the law is: “ He shall be entitled to his share of such estate, notwithstanding such distribution, and may recover in an action on the case for money had and received any portion thereof which any one received under such an order.” The County Court estimated that compensation to be the value of the share as it was ascertained at the time of distribution, and interest on the same from that date.
It will be observed that the time when the value of such share is to be estimated is not fixed by the law. The law in that respect is ambiguous; and in construing it we are to ascertain, if we can, what the design and intent of the framers was. It is evident to us that the intention in thus protecting the interests of absent heirs was to place them in as advantageous a position as they would have been in if the estate had not been distributed. If an executor or administrator, while he is administering upon an estate, expends money upon it which is necessary to its preservation and protection, and which it is for the interest of the estate to have expended, the expenditures become a charge upon the estate and the shares to which the heirs are entitled are proportionally diminished; so that if this estate had not been distributed, the share of Mary Lenehan would have been chargeable with its proportion of any such expenditures made upon it while it was being administered.
The adoption of the rule that the value of a share is its value as ascertained at the time of distribution, as an arbitrary one, and compelling distributees to pay upon that basis, would frequently result in great injustice. The property may be wholly lost, or it may depreciate largely in value without the fault of the distributee, after distribution made and before the absent heir appears and demands compensation. To compel the distributee to bear the loss under
If the share of the heir has appreciated in value he should be entitled to the benefit of such appreciation; if it has become ,less valuable, without the fault of the distributee, the loss in value should be borne by the heir. If rents and profits have been or might have been derived from the use of such share, the i heir is entitled to them. If necessary and proper expenditures have been made upon the property, the heir should be charged with his proportion of such expenditures in reduction of the amount which the distributees are compelled to pay him. Such a rule of accountability will effectuate what seems to us to be the spirit and intent of the law, and will work out just and equitable results.
It is evident that no proper judgment can be rendered upon the facts reported. The judgment is reversed; and cause remanded in order that it may be recommitted for specific findings, as to the amount, kind, and value of the repairs made upon the property by the defendants, and the necessity for making them, and as to any other expenditures made upon, or for the care and preservation of the property; and the amount that has been or might have been received by the defendants for the use of the same, and its value at the time this suit was brought.
Dissenting Opinion
I am unable to concur in the opinion and decision in regard to the amount that the plaintiffs, under the statute, are entitled to recover. I concur in the other parts of the decision. I agree that “the order made,” by the Probate Court February 17, 1877, “divested the heir” (the plaintiff wife) “ of all legal claim to the estate, and vested the same in the defendants.” The statute, giving the plaintiffs the right to recover for the share of the estate, of which they have been divested by the order, of those who thereby received the same, or a portion thereof, reads: ‘' But if such absent person proves to be alive he shall be entitled to his share of such estate, notwithstanding such distribution, and may recover in an action on the case for money had and received any portion thereof which any one received under such order.” I cannot regard this language as ambiguous. It plainly intends that the property shall be valued as of the time of the order; that the absent heir may recover in money for so much of his share as the defendants have received of the same by virtue of the order. He may recover it the next day after the order is made. The defendants take his property — because it turns out that he is alive — by virtue of the order, and thereby become legally liable to pay him for it, at once. To my mind it is a misconstruction of the statute, its intention and purpose, to hold that such distributee holds such heir’s share, after such order, in trust like an administrator or executor, and can charge and be allowed for improvements, and must account for the rents and profits received, or that he is to be allowed for the depreciation, or charged with the rise, in its value, after such order, when called upon by the heir to pay for the same. The opinion, to my mind, is incongruous and illogical, in that it holds that the order of the Probate Court divested the heir of all legal claim to the estate, and vested the same in the defezidants, and at the same time, holds, that the defendarzts hold the same izi trust for the heir, accountable for rents and profits, azid are to be allowed for improvements, depreciation in value, and for care of the same; thus treating the property as still the property of the heir, notwithstanding the order of the Pro
I am entirely of the same opinion. The two holdings, that the defendants are the absolute owners of Mrs. Lenehan’s share but that they must account therefor as though they were trustees of it, are inconsistent, and cannot stand together; for one cannot sustain both those relations to the same property at the same time. I think the defendants are quasi purchasers of the property, and liable for only the value thereof at the time they became such, with interest thereon, which constitutes the purchase piece.