Timothy v. Farr

42 Vt. 43

Opinion

The opinion of the court was delivered by

Wilson, J. The probate court, upon application of the appellees, who represented themselves creditors, and who had failed to present their claims to the commissioners within the time previously limited for that purpose, ordered that the commission be renewed and allowed sixty days further time for the commissioners to examine said claims and report thereon. From this order of the probate court the defendant, as administrator, appealed and carried his appeal into the county court before any report upon, said claims had been made by the commissioners. Section 1 of chapter 53 of the General Statutes, provides that “ where letters testamentary or of administration shall be granted by any probate-court, it shall be the duty of such court to appoint two or more suitable persons to be commissioners, to receive, examine and adjust all claims and demands of all persons against the deceased, except in the following cases : Pirst, where it shall appear that-there are no debts existing against such person; Second, where-the value of the whole estate shall not exceed the sum of three- hundred dollars, and shall be assigned for the support of the widow and children, as provided by law.” Section 6 of the. same chapter provides that “ the probate court shall allow such time as the circumstances of the case shall require for the creditors to present their claims to the commissioners for examination and allowance, which time shall not in the first instance exceed eighteen months, nor be less than six months, and the time shall be stated in the commission.” Section 7 provides that the probate court may extend the time allowed to creditors to present their claims .as the circumstances of the case may require ; but not so that the whole time shall exceed two years. Section 8 of that chapter provides, among other things, that on the application of a creditor, who has failed to present his claim, if made within six months after the expiration of the time previously limited, and such application shall be made before the final settlement of the estate, the court may, for good cause shown, renew the commission and allow further time, not exceeding three months, for the commissioners to examine such claims, and they shall, as soon as may be, make return of their doings to the probate court. The case does not show, nor is it claimed that the application for renewal of the commission was not made within six months from the time previously limited, nor is it claimed that it was not made before the final settlement of the estate ; we must, therefore, assume that it was made within the time prescribed by 'the statute, and that the subject matter of the application was legally before that court. The language of the statute, “ the court may, for good cause shown, renew the commission and allow further time,” clearly inqplies that, when the application is seasonably made, the order of the court, renewing such commission and allowing further time, is a matter of discretion. Section 80 of chapter 48 of the General Statutes provides that “ any person interested in any order, sentence, decree or denial of any probate court, who considers himself injured thereby, may appeal therefrom to the county court.” It is, however, well settled law in this state, that the order, sentence, decree, or denial appealed from must have been one which made a final disposition of the subject matter before the probate court. Adams v. Adams, 21 Vt., 162 ; Hodges v. Thacker, 23 Vt., 455 ; Hobert v. Herrick, 28 Vt., 627.

The subject matter before the probate court in this case upon that application was not limited to the mere question whether the commission should or should not be renewed, but it embraced the claims on which the application for a renewal of the commission was founded, and the order, renewing the commission, was the inception of the regular statutory proceedings for the purpose of allowing or disallowing the claims which the order allowed the claimants to present, and those claims were the principal subject matter before the probate court. The order renewing the commission was strictly interlocutory, from which no appeal lies until the coming in of the commissioner’s report and its acceptance by the probate court. Such order of the probate court is analagous to an interlocutory judgment of the county court appointing an auditor, and to an order of reference or other interlocutory order in a suit in chancery. In a suit at law, if the parties wish to save any questions of law decided by the county court on any interlocutory judgment which does not make a final disposition of the cause in that court, they except to the opinion or judgment of the court, and have the exceptions allowed and filed, and if the final judgment is against the party excepting to such interlocutory judgment, the cause can then pass to the supreme court for revision of all rulings and judgments of the court' below, to which exception had been taken. In chancery either party may assign error in an interlocutory order or decree, as well as in the final order or decree in the cause, and in such case, upon such order or decree of the court of chancery being brought by appeal from the final order or decree of that court to the supreme court, the court will examine all errors that shall be assigned or found in such interlocutory or final order or decree, and affirm, reverse, or alter such order or decree as justice shall require. But no civil cause can come regularly before this court, from the county court, or court of chancery, until a final judgment or decree is rendered or made therein by the court that allowed the exceptions or granted the appeal. In the settlement of estates in the probate court, the parties or persons interested therein, who wish to save any ques tion of law decided by that court on any interlocutory order or decree, are not required to take or have allowed, at the time of making of such order or decree, any written or formal exceptions thereto; but they can object to the making of an order or decree by the probate court, even though it be an order or decree which would not finally dispose of the matter before that court, and if that court proceed and make the order or decree objected to, there can be no legal or practical difficulty, under our statute, in allowing the question or matter involved in such interlocutory order or decree, to be reserved until the matter has been finally disposed of in that court, and then to pass, by appeal, the question or matter objected to and reserved as part of the adjudication under the final order and decree of that court in the premises. The interlocutory orders and decrees are apart of the proceedings on which the validity or invalidity of the final order or decree depends, and an appeal, from the main question adjudicated under the final order or decree, takes with it all interlocutory questions and orders thereon, and the whole is subject to revision on appeal. The statute gives the right of appeal, if application therefor be made within twenty days from the date of the decision appealed from. In case of appeal from the decision and report of commissioners, the date of the decision of the probate court accepting their report is regarded as the commencement of the twenty days within which that court has power to grant such appeal. 23 Vt., 455; 33 Yt., 558. The decree of the probate court, .accepting the report of commissioners, is not confined to the question whether their report is regular upon its face, but it is a decree in favor of all the previous proceedings and orders under which the commissioners acted, and on which the validity of their report, and the final decree thereon, rest. So far, therefore, as the right of appeal is concerned, the date of the decision accepting the report must also be regarded as the commencement of the twenty days within which that court has power to grant an appeal from an interlocutory order which did not make a final disposition of the matter in that court. If, in the present case, the commissioners allow the claim in question and the probate court accept their report, then an appeal from their report would carry before the county court all questions touching the validity of the order renewing said commission, and the subsequent proceedings under it. It is scarcely necessary to remark that where the probate court deny the application of a creditor for the appointment of commissioners or renewal of their commission, as provided by law, such denial of the probate court would finally dispose of the subject matter before that court, and from such order or denial an appeal could be taken. It will be observed that the right to appeal from an order changing commissioners is taken away by the statute of 1865. ,

II. It is claimed by the appellees that they are improperly joined in the order and notice of the appeal, but we think the objection is not well taken. The applications for renewal of the commission are several, but any number of creditors may join in an application for renewal of such commission. The order renewing the commission should, and in this case it does, specify the creditors as to whom the commission is renewed; but the subsequent proceedings, with reference^ to the merits of their respective claims, should be several. The appeal having been taken directly from the order renewing the commission, joint notice of it is well enough. We are of opinion that the appeal taken was premature, and for this reason it was correctly dismissed. The judgment of the county court is affirmed.