Sabine v. Rounds, 50 Vt. 74

Sabine v. Rounds

50 Vt. 74 | Vt. | 1877

The opinion of the court was delivered by

Powers, J.

This is a petition for a writ of mandamus. The petitioner, an heir-at-law of Lucia H. Cleveland, deceased, complains that he has been wrongfully denied an appeal from a decree made by the respondent as Judge of Probate for the District of Windsor, appointing one J. B. Farnsworth as executor of the will of said Lucia. The proceedings of said Probate Court in *77admitting said will to probate, and the application of the petitioner for an appeal from the allowance of said will, so far as concerns the appointment of the executor, are fully set forth in the petition and answer, and are to be taken as true.

It appears that the petitioner asked for no appeal from the order allowing the probate of the will itself, but objected to the executor named therein. The Probate Court adjudged that the appointment of the executor was no part of the duty of the court, but on the contrary, the court was bound to commission whoever was nominated by the testatrix in her will, unless it was shown that such person was unfit for the trust. No claim was made of any unfitness in the nominee. We think the Probate Judge was right in his views of his official duty.

The Probate Court has no power to appoint an executor. The testator has this right, and the statute is peremptory that the Probate Court shall issue letters testamentary to the person named, if he accepts the trust and files the proper bond. The whole theory upon which the right to make a will rests, implies that a person controlling his property in life may determine its dominion after death, and direct who shall make distribution of it.

The old cases held that naming an executor was essential to the validity of the will itself. Though this doctrine does not now prevail, it shows that the source of the appointment has always been traced to the testator.

The respondent had no power, and claimed no power, to adjudicate upon the question of Mr. Farnsworth’s appointment as executor. No order involving the exercise of judicial discretion was made, and hence no appeal was possible.

Another fatal objection to this petition is made in the case. Sec. 5, c. 38, Gen. Sts., provides that the Supreme and the County Courts shall have jurisdiction to grant leave to take an appeal from any order or decree of the Probate Court, in cases where the appeal is lawful, and the party entitled has been deprived of his appeal by fraud, accident, or mistake. The remedy given by this section is the same as that given by a later section of the same chapter, to defendants in suits before justices of the peace who have been deprived of an appeal under the same cir*78cumstances. Under the latter section, it has been held that a denial of an appeal to which the applicant was entitled, was such a mistake as entitled him to relief. Sec. 5 should have the same construction.

The writ of mandamus is an extraordinary remedy that courts apply to prevent a failure of justice, and never issues unless the applicant has a.clear legal right, and .has not other specific, adequate remedy.

The petition is dismissed with costs.