W. F. Roddy v. Estate Walter J. Fitzgerald

The plaintiff's claim against the defendant estate in the sum of $333.16 was disallowed by the commissioners, and their report having been returned to probate court the plaintiff applied in writing for an appeal therefrom ""to the County Court to be holden at City of St. Albans within and for the County of Franklin, on the 14th day of September, A. D. 1943. "" P. L. 3006, under which the plaintiff attempted to proceed, provides that such appeal may be taken ""to the county court."" The appeal having been entered in County Court after notice given, the estate in due course filed a general appearance and answer and thereafter a motion to dismiss the appeal on the ground that the court was without jurisdiction and authority to entertain the same. The motion was denied, exception granted, and hearing had on the merits. At the Conclusion of the evidence the motion to dismiss was renewed, again denied and exception granted. In this Court the Estate relies upon its exceptions to the denial of its motion. [1] This case is very similar in its facts and in the question presented to In Re Walker Trust Estate, 112 Vt 148, 22 A.2d 183, although in that case the appeal was attempted to be taken under P. L. 3005 from an order of the probate court allowing the account of a testamentary trustee, while in this case the attempted appeal was from the decision and report of commissioners under P. L. 3006. However the history of P. L. 3006 is exactly parallel with that of P. L. 3005 as set forth in the Walker case. The change made by R. L. 2071 in the previously existing law with respect to designating the court to which appeals from the decision and report of commissioners were to be taken was the same as the change made by R. L. 2070 with respect to appeals from an order of the probate court, except that the words ""in the county"" were retained in Sec. 2071 but not in Sec. 2070. This difference is immaterial and does not appear in subsequent revisions. Number 28 of the Acts of 1892, omitting from the notice required to be given the designation previously required of the session of the court to which the appeal is taken, is equally applicable to appeals of the one class or of the other.