62 Vt. 260 | Vt. | 1890
The opinion of the court was delivered by
I. This is a petition to the County Court to be allowed to enter an appeal from the Probate Court under R. L. s. 1426, which provides that the County Court may allow such an appeal to a person entitled to it, but who has been prevented from taking and entering an appeal by fraud, accident or mistake. The statute is remedial. It provides for a proceeding by petition to the County Court, without a jury, and prescribes no form for the petition. The technical common law rules of pleading are not, to their full extent, applicable to such proceeding. The petition must set forth such facts that the court may fairly find therefrom one of the causes specified, and then, in its sound judicial discretion, grant or deny the relief prayed for. The facts stated in the petition are admitted by the demurrer. The case stands in this court, therefore, as though the County Court had upon a proper petition found the same facts, established by proof, and thereon granted the petitioner the relief which was granted in the court below. From the facts thus admitted, we think the County Court could have fairly inferred, or found established, that the petitioner was prevented from taking an appeal in the Probate Court, either by mistake or by fraud. The inherent fault of the contention by the counsel of
II. It is further contended that the petition is insufficient to-sustain the action of the County Court, because it does not aver that the administrator declined to appeal. This contention is-based upon R. L. 2275. That section provides that when an executor or administrator declines to appeal from the decision of the commissioners, a person interested in the estate, as creditor or legatee, may appeal from such decision. This provision relates to appeals taken within the time allowed by law. The petition avers that no appeal was taken by the administrator or any other person, within the time allowed by law for taking-appeals. This is equivalent to an averment that the administrator declined to appeal under this section of the statute. It is further contended that the petition should state that the administrator declined to petition for an appeal under R. L. 1126, the section under which this petition is brought. By this section, the petitioner must have been prevented from taking and entering an appeal by fraud, accident or mistake. It is apparent that one of the specified causes may have prevented a creditor or legatee which did not prevent the administrator, or executor, or vice versa. Hence, either may be entitled to relief under this section when the other would not. The right to proceed by petition under this provision of the statute, by a creditor or legatee, is not made to depend upon a declination of the right by an administrator or executor, but such right is given directly to the party prevented from taking an appeal by one of the causes assigned.
Judgment affirmed. On motion hy petitionee the cause is-remanded with leave to the -petitionee to replead on the usual terms~