Whitcomb v. Davenport's Est.

The opinion of the court was delivered by MUNSON, J. It has been heretofore held that the right of appeal from the decrees of the Probate Court extends to matters which are within the discretion of that court. Adams v. Adams, 21 Vt. 162 ; Holmes v. Holmes, 26 Vt. 536 ; Hilliard v. McDaniels, 48 Vt. 122. In the case first cited, the court laid some stress upon the comprehensiveness of the language of the statute, — it being then provided that an appeal might be taken from “ any ” order or decree of the Probate Court, and that the County Court should have appellate jurisdiction of “ all ” matters of which the Probate Court had original jurisdiction. In ;the revision of 1880, the word “an” was substituted for “any” and the word “all” omitted; R. L. 2270, 2268; and it is urged 'that this change in phraseology indicates an intention to restrict somewhat the right of appeal, and that a matter resting entirely in the discretion of the Probate Court ought not now to be considered revisable. If the alterations pointed out were to be considered without .-any reference to. the design and methods of the revisers, it would .even then be difficult to regard them as indicating an intention to make the law less comprehensive. But a comparison of the Revised Laws with the previous statutes will show that these ■changes were made in accordance with a plan of alteration and condensation which was co-extensive with the entire work. Moreover, it is well settled that changes made in a revision will not be taken to alter the law as construed by previous decisions, unless an intention to do so is clearly manifest. Clark v. [659] Powell, 62 Vt. 442. The changes relied npon furnish no reason for a departure from the line of former decisions. It is further urged that the appellant’s claim was in fact presented to the commissioners and disallowed, and that she is therefore not entitled to the remedy sought by her petition, but must seek relief as one prevented from taking an appeal from the determination of commissioners by fraud, accident, or mistake. It fairly appears from the petition that the claim was presented to and passed upon by the commissioners without the procurement or knowledge of the claimant; and, whatever the rule may be in regard to proceedings in courts where a party can appear only by himself or through an attorney of the court, we are not ready to hold that a party can be bound by the unauthorized act of another before a tribunal where claims are often presented informally, and through any .convenient agency. A person whose claim has been disallowed upon ah unauthorized presentation is nevertheless “ a creditor who has failed to present his claim.” Moore v. Bachelder, 51 Vt. 50. The appellant was not entitled to have the commission renewed unless her petition therefor was presented within six months after the expiration of the time previously limited. The Probate Court dismissed the petition, but the ground of its action does not appear. The petition contains no allegation of its presentation within the recpired time, and there is nothing in the record sent up by the Probate Court to show whether it was filed before or after the statutory period had elapsed. In the County Court, the appellee moved that the cause be dismissed, assigning for one reason that no facts appeared showing, jurisdiction; and the appellant thereupon asked leave to amend her petition by inserting an allegation that it was seasonably brought. Leave to amend the petition was refused, and the motion to dismiss sustained. Under the ordinary probate practice, it was not necessary to a favorable action on the petition in the Probate Court that the [660] petition itself should aver that it was filed within the required time ; and, there being nothing in the record before us to preclude the possibility that the fact of its being so filed appeared and was acted upon in the court of original jurisdiction, we are not willing to deprive the appellant of a remedy to which she may be entitled, because of the failure to so frame her petition that its seasonable presentation would appear in the appellate court by way of allegation. If the application was in fact made to the Probate Court withiu six months after the expiration of the time previously allowed by that court for the presentation of claims, it had jurisdiction of the subject matter of the petition, and could grant the relief prayed for. The records of that court will show whether six months elapsed between the expiration of the time limited for presenting claims and the filing of the petition, and the fact should be determined on appeal by those records. If for any reason the record fails to show the true day of the presentation of the petition, it is for the Probate Court to determine the day of actual presentation, and amend its record accordingly. "We think that, properly, the record of the action of the Probate Court upon the petition should show whether it appeared, or did not appear, that the petition was presented within the required time, and that judgment should not be rendered in the appellate court without having the fact so ascertained and certified. Without entering upon the merits of the respective motions made below, we are satisfied that a more desirable course than the one taken by the appellant was open to her; and the situation is such that the court will, of its own motion, remand the case with instructions that leave be given the appellant to procure and file amended copies. This will give the Probate Court an opportunity to amend its record of the adjudication appealed from so that it may show that the petition was, or was not, filed within six months after the expiration of the time previously limited, as the fact may appear from an inspection of its records. Judgment reversed, and cause remanded to the County Court for further proceedings.