Segerstrom v. Wells

Supreme Court of Vermont

Segerstrom v. Wells

501 A.2d 1193, 146 Vt. 314, 1985 Vt. LEXIS 389

CourtSupreme Court of Vermont

DecidedOctober 4, 1985

DocketNo. 84-205

StatusPublished

This text of 501 A.2d 1193 (Segerstrom v. Wells) is published on Counsel Stack Legal Research, covering Supreme Court of Vermont primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Segerstrom v. Wells, 501 A.2d 1193, 146 Vt. 314, 1985 Vt. LEXIS 389 (Vt. 1985).

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Opinion

Per Curiam.

On January 12, 1983, the executrix of Clyde Knott’s estate, Barbara K. Segerstrom, petitioned the Orleans Probate Court for a license to sell real property, such power being expressly conferred by the testator’s will. 14 V.S.A. § 1653(b). In her petition, the executrix excepted the dwelling house wherein appellant resided as is required by statute. The probate court stayed decision on the petition pending the appellant’s appeal of the probate court’s decision to disallow her claim against the estate. The executrix then filed for a writ of mandamus in the superior court directing the judge of the probate court to issue the license. Appellant claimed that the probate court’s stay was a final order and that the executrix’s sole remedy lay in an appeal. In the alternative, appellant argued that the act of issuing a license was not subject to mandamus. The superior court found for the executrix. We affirm.

First, we note that mandamus was an appropriate avenue of relief. The matter before the probate court, the petition for a license to sell real estate, was not finally disposed of, In re Estate of Seward, 139 Vt. 623, 433 A.2d 274 (1981), and the stay which issued was not a final appealable order. It was, in essence, a decision not to decide.

Second, where a power of sale is conferred by will and exception is made for a dwelling house inhabited by the surviving spouse or an heir, a petition for a license to sell real estate should be granted. This is purely a ministerial act, in no way dependent on the status of claims against the estate. Thus, the order of man[316]*316damus was properly issued.

Affirmed.

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Per Curiam.

On January 12, 1983, the executrix of Clyde Knott’s estate, Barbara K. Segerstrom, petitioned the Orleans Probate Court for a license to sell real property, such power being expressly conferred by the testator’s will. 14 V.S.A. § 1653(b). In her petition, the executrix excepted the dwelling house wherein appellant resided as is required by statute. The probate court stayed decision on the petition pending the appellant’s appeal of the probate court’s decision to disallow her claim against the estate. The executrix then filed for a writ of mandamus in the superior court directing the judge of the probate court to issue the license. Appellant claimed that the probate court’s stay was a final order and that the executrix’s sole remedy lay in an appeal. In the alternative, appellant argued that the act of issuing a license was not subject to mandamus. The superior court found for the executrix. We affirm.

First, we note that mandamus was an appropriate avenue of relief. The matter before the probate court, the petition for a license to sell real estate, was not finally disposed of, In re Estate of Seward, 139 Vt. 623, 433 A.2d 274 (1981), and the stay which issued was not a final appealable order. It was, in essence, a decision not to decide.

Second, where a power of sale is conferred by will and exception is made for a dwelling house inhabited by the surviving spouse or an heir, a petition for a license to sell real estate should be granted. This is purely a ministerial act, in no way dependent on the status of claims against the estate. Thus, the order of man[316]*316damus was properly issued.

Affirmed.

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Bluebook (online)

501 A.2d 1193, 146 Vt. 314, 1985 Vt. LEXIS 389, Counsel Stack Legal Research, https://law.counselstack.com/opinion/segerstrom-v-wells-vt-1985.

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