153 A. 673 | Vt. | 1932
This is a bill in chancery, brought under G.L. 3228, enacted as No. 40, Acts of 1896, for a construction of paragraph eight of the will of Thomas Francis O'Rourke, late of Derby, deceased, which is as follows: "If I should die possessed of any real estate in Newark, N.J., I give, grant, devise and bequeath the same to my now intended wife, Maude Delaney of Newark, N.J., and I also give and bequeath to her all household goods, house furnishings and all contents of any house or apartment that may belong to me or may be occupied by us in Newark, N.J.; and I give and bequeath to the said Maude Delaney the sum of twenty-five thousand dollars ($25,000.00) all of the above to be to her and her heirs forever."
The bill alleges, in substance, that the testator died on January 29, 1931, at Derby Line, where he had resided for many years; that on November 21, 1928, he duly executed his last will and testament, which has been duly probated as such by the probate court for the District of Orleans, this State, wherein the settlement of the estate is still pending; that defendants Cleary and the National Bank are the duly appointed executors of *315 testator's will; that at the time of the execution of the will, the plaintiff was engaged to be married to the testator, and she is the Maude Delaney mentioned in the eighth paragraph of the will; that on November 27, 1928, the plaintiff and testator were married; that at the time of this marriage, the testator had a son by a former marriage, who is defendant Thomas Nelson O'Rourke, and who is the only surviving child of the testator; that testator never owned any property in New Jersey; that the assets of the estate, as shown by the inventory filed in probate court, are valued at $170,988.87, and, in addition, there are assets of the value of $36,402.62, the ownership of which by the estate may be questioned; that the claims allowed against the estate aggregate $6,830.37.
The bill further alleges that the force and legal effect of the bequest under the last clause of said paragraph eight, namely, "I give and bequeath to said Maude Delaney the sum of twenty-five thousand dollars ($25,000.00) all of the above to be to her and her heirs forever," is doubtful and in dispute, the question being whether the $25,000.00 given plaintiff by that bequest isin addition to her statutory rights as surviving widow, or whether it is in lieu of such statutory rights; that if the bequest is in lieu of such statutory rights an election is required by plaintiff, and that plaintiff cannot intelligently decide whether she shall elect to take the bequest or to waive the same and claim her statutory rights, unless and until she has an authoritative construction of the will in the respects above indicated.
The defendants demurred to the bill on the ground that the court of chancery had no jurisdiction. The same question was raised by motion to dismiss. The demurrer and motion were overruled, subject to defendants' exceptions. Solely on the facts alleged in the bill and admitted by the demurrer, decree was entered, subject to defendants' objections and exceptions, that plaintiff takes the bequest in addition to her statutory rights as surviving widow, and not in lieu thereof, and that she is not required to make an election. The defendants have appealed, and the case is before us on the appeal and exceptions.
The defendants challenge the jurisdiction of the court of chancery upon two grounds, (1) that the subject-matter of the bill is within the exclusive jurisdiction of the probate court, and (2) that an adequate remedy is provided by the regular course *316 of administration of the estate in probate court, and also by the Uniform Declaratory Judgments Act.
Before the enactment of No. 40, Acts of 1896, it was the uniform holding of our decisions that equity will not interfere in the settlement of estates, so long as there is an adequate remedy in the probate court. Davis v. Eastman,
G.L. 3228 (No. 40, Acts of 1896) reads as follows: "In cases where the terms of a will are doubtful or in dispute, a person interested in the estate, either as legatee, devisee or heir at law, may bring a bill in chancery to have the will construed; and the court of chancery, or the supreme court on appeal, shall proceed to construe the will; and such decision shall be binding on parties who are served with process and all who appear in the cause by counsel, notwithstanding it appears that others may at some future time become interested under the will." This statute first came before this Court for construction in Harris v.Harris,
Before proceeding to make this application, we will consider other statutory provisions which are relied upon by the defendants as precluding jurisdiction by chancery. It must be kept clearly in mind that proceedings under G.L. 3228 are restricted to the construction of the alleged doubtful or disputed terms of a will. They are not to be instituted, under the guise of such an objective, for the purpose of obtaining advice from the court of chancery as to the construction of statutes affecting the rights or interests of a surviving widow in the estate of her deceased husband; nor to determine whether the intention of the testator affects the question of election between the provisions of the will and the widow's statutory allowance of the personal estate, as well as her statutory interest in real estate. Such questions are to be determined in the first instance exclusively in the probate court. Under the provisions of G.L. 3405, subdv. II, the widow may be barred of a third in value of the real estate of which her husband died seized in his own right, "where the husband by his last will and testament made provision for her, which, in the judgment of theprobate court, was intended to be in lieu of such third interest in such estate." While the language of this provision clearly confers upon the probate court jurisdiction to determine the question of testator's intention in the exercise of its general jurisdiction of the settlement of estates, it is equally clear that it was not intended as a specific grant of exclusive power. Besides, this provision of G.L. 3405 (so far as material to the point being discussed, was in force at the time of the enactment of G.L. 3228, and so, if there were conflict, the former would be modified by the latter. We hold that paragraph II of G.L. 3405 does not interfere with the exercise of jurisdiction by chancery under G.L. 3228 within the limited and special purpose of the latter act. *318
The defendants further contend that the plaintiff has a complete and adequate remedy under the Uniform Declaratory Judgment Act, No. 37, Acts of 1931, since the probate court is one of the three courts that has jurisdiction to render declaratory judgments, and specifically to determine questions arising in the administration of estates, including questions of construction of wills. The plaintiff, however, argues, among other things, that a proceeding to obtain a declaratory judgment will not be entertained where another statutory remedy has been specially provided for the character of the case in hand, and numerous cases are cited in support of her contention, includingKariher's Petition,
It is unnecessary to consider what application, if any No. 37, Acts of 1931 has to the case made by the bill, because that act did not repeal G.L. 3228, either expressly or by implication. The rule is that a statute will not be construed as repealing a former act on the same subject, in the absence of express words to that effect, unless there is such an inconsistency between them that they cannot stand together, or unless the later act is evidently intended to supersede the former in respect of the matter in hand, and to comprise in itself the sole and complete system of legislation on the subject. In re Turner,
This brings us to the question whether there is any occasion for the intervention of the court of chancery. It was the manifest intention of the Legislature that this statute (G.L. 3228) should serve a useful and helpful purpose for those who are designated therein as eligible to apply under it for protection and aid. It is to be construed with reference to that object, and so as to carry out rather than defeat it. In re National Guard,
As we have already observed, after the demurrer and motion were overruled, the court, without ordering the defendants to answer, and without taking any extrinsic evidence as to the circumstances surrounding the testator at the time the will was made as an aid in determining the testator's intention, entered its decree construing the eighth paragraph of the will in accordance with the plaintiff's contention. The defendants insist that the facts alleged in the bill are insufficient to enable the court to construe the will without evidence of the associated circumstances. The plaintiff asserts that this was due to defendants' own fault, as they chose to stand on their demurrer. The question is one of procedure only. As we interpret the record, the merits of the decree are not involved. We agree that if final decree on the merits was intended the court should have reserved the benefit of the demurrer until final hearing, should have ordered the defendants to answer, and then proceeded to hearing on the issue made by the bill and answer. We *320 will assume, nothing appearing to the contrary, that the chancellor proceeded under chancery rule 17; that he treated the bill taken as confessed, and entered the decree in order to send the case to this Court for a determination of the law questions raised by the demurrer before trial on the merits.
In Westminster v. Willard,
The practice adopted by the chancellor in the present case follows the procedure adopted and approved in State v. Massey etal.,
Decree reversed pro forma, and cause remanded. Let theplaintiff recover costs in this Court.