In re Bellows' Estate

The opinion of the court was delivered by Taft, J. The appellant was executor of the estate of [226] Hiram Bellows. Under the last clauses of sec. 2067 R. L., he was ordered by the Probate Court to file a bond as executor, and upon his neglect to do so, and for that reason, the court removed him and appointed an administrator, c. t. a. From the order of removal and appointment the said Sowles appealed. The appellees, being legatees under the will, moved, in the County Court, to dismiss the appeal for two reasons, viz. : First, that the decree and order of the Probate Court was not one from which an appeal, would lie; second, that Sowles had no such interest in the estate as entitled him to an appeal. The County Court dismissed the appeal and the appellant excepted.' This brings the two questions before us for revision. Sec. 2074, R. L., expressly authorizes the Probate Court to remove an executor who neglects-to perform an order of the court. The authority of the court so to do is not here questioned. Sec. 2270, R. L., provides that “ a person interested in an order, sentence, decree or denial of a Probate Court, who considers himself injured thereby may * * * appeal.” This case was once before the court (see 57 Vt. 382), and it was then held that no appeal would lie from the order of the court requiring an executor to file a bond under the last clause of sec. 2067, R. L. ; and the appellees contend, with much force, that where an executor is removed for neglect to comply with an order from which he could not appeal he is consequently denied an appeal from the removal itself. We do not think this necessarily follows. We think that if the statute gives the right of an appeal in any instance, it does in all, whatever the reason for the exercise of the right may be. The statute, as made, is general, and gives to any party interested an appeal from any order, etc., which is the subject of an appeal by any one. Our legislation and the decisions of our courts support the view here taken. Sec. 2081, R. L., prohibits an appeal from the appointment of a special administrator, the necessity of which section is not apparent, unless without it a proper party would be entitled to one. Sec. 2065, R. L., clearly recognizes the right of appeal by providing that [227] “ upon appeal from an order appointing an administrator the County Court shall, if such appeal is sustained, fill the vacancy thereby caused by immediate appointment of a suitable person as administrator, and the judgment and appointment shall be certified to the Probate Court, and such court shall, when such administrator files the bond required of administrators, grant letters of administration to him as though he had been appointed by such court.” 'Whether the evil of leaving an incompetent and unfaithful deposed executor in control of the estate, as suggested by the brief of the appellees, would follow as the result of an appeal, we are not called upon to decide, as the question is not before us. Upon a similar question in case of a guardian (State v. McKown, 21 Vt. 503), it was held that an appeal did not vacate the order of removal, but suspended the rights of the removed guardian until restored by a decision of the appeal in his favor. And see Small v. Haskins, 26 Vt. 209. But with this question we have nothing to do. And see cases of appeal from the appointment and removal of administrators. Re Holmes Estate, 26 Vt. 536; Re Anderson’s Estate, 42 Vt. 350; Hilliard v. McDaniels, 48 Vt. 122. We hold that the order was one from which a proper party might have taken an appeal. Had the executor, Sowles, the right to an appeal ? The executor of a will is the creation of the testator. The Prohate Court has no power of appointment, the testator alone has this right. The dominion of the property after the testator’s death is given the executor. Sabine v. Rounds, 50 Vt. 74. We think the executor has such a right to the property of the estate, conferred upon him by the will, as gives him the right of an appeal. He has, unless unfit, the legal right to administer the estate. What the rule may be in case of an administrator simply, or one c. t. a., we are not called upon to decide. There was error in dismissing the appeal. Judgment reversed and cause remanded. Powers, J., did not sit, being absent.