PART 1 Wills and Probate of Wills

Cross References

Cross references. Estate tax, see § 7441 et seq. of Title 32.

Suicide's estate not forfeited, see § 65 of chapter II of Vermont Constitution.

CHAPTER 1. WILLS

Sec.

History

Wills executed prior to July 1, 1971. 1971, No. 90 , § 21, provided: "Notwithstanding any other provision of this act [which reduced the age of majority from twenty-one to eighteen], for purposes of any provision contained in a will, trust agreement, deed, contract or other similar instrument, executed prior to the effective date of this act [July 1, 1971], which includes the word 'minor', 'infant', 'adult', or 'majority', or otherwise refers to the state of minority or the attainment of majority, the age of attainment of majority shall be deemed to be 21 years."

Applicability of 2017 (Adj. Sess.) amendment. 2017, No. 195 (Adj. Sess.), § 19 provides: "This act [which amended this chapter] shall take effect on July 1, 2018 and shall apply to wills executed or offered for admission on or after that date."

Cross References

Cross references. Anatomical gifts, see § 5250a et seq. of Title 18.

Reformation of interests violating rule against perpetuities, see § 501 of Title 27.

Word "will" as including codicils, see § 141 of Title 1.

§ 1. Who may make.

Every individual 18 years of age or over or emancipated by court order who is of sound mind may make a will in writing.

Amended 2017, No. 195 (Adj. Sess.), § 1.

History

Source. V.S. 1947, § 2816. 1947, No. 202 , § 2839. P.L. § 2744. G.L. § 3200. P.S. § 2731. V.S. § 2346. R.L. § 2039. 1870, No. 31 , § 2. G.S. 49, §§ 1, 4. G.S. 71, § 17. 1847, No. 37 , § 2. R.S. 45, §§ 1, 4. 1821, p. 37. R. 1797, p. 209, § 1.

Amendments--2017 (Adj. Sess.). Section amended generally.

Cross References

Cross references. Eighteen-year-olds considered of age, see § 173 of Title 1.

I. TESTAMENTARY CAPACITY
1. General rule.

In determination of testamentary capacity, true test is whether testator had sufficient mind and memory at time of making will to remember who were natural objects of his bounty, recall to mind his property, and dispose of it understandingly according to some plan formed in his mind. In re Estate of Burt, 122 Vt. 260, 169 A.2d 32 (1961).

Where lack of testamentary capacity or undue influence are grounds of contest of will, few artificial rules are applied, and, in view of many factors entering into matter, investigation must be befittingly untrammeled, and inquiries for most part must be carried on in accordance with liberal rules of procedure. In re Everett's Will, 105 Vt. 291, 166 A. 827 (1933).

2. Memory.

There must be sufficient active memory to collect and retain elements of business to be performed, for a sufficient time to perceive their obvious relation to each other. Executor of Converse v. Converse, 21 Vt. 168 (1849).

3. Insane delusion.

If testator has an insane delusion in respect to one of his children, or other natural object of his bounty, and instrument presented for probate is product of such delusion, it is void, notwithstanding he may have had capacity to do all kinds of business not involving such delusion. In re Segur's Will, 71 Vt. 224, 44 A. 342 (1899).

4. Guardianship.

Person adjudged a non compos and placed under guardianship as such was thereby rendered prima facie incapable of making will while adjudication remained in force. In re Cowdry's Will, 77 Vt. 359, 60 A. 141 (1905).

Appointment of guardian was not conclusive of competency of ward to make will. Robinson's Executor v. Robinson, 39 Vt. 267 (1867).

5. Burden of proof.

When proponent drew will taking entire estate or large bequest when he would have taken nothing as heir, while near, needy and deserving relatives took nothing, and no reason for devise to proponent was shown and other suspicious circumstances existed, the law regarded instrument as unnatural and cast upon proponent burden of proving that it was not procured by undue influence on his part or in his behalf. In re Barney's Will, 70 Vt. 352, 40 A. 1027 (1898).

Under facts of case, burden was on proponent to prove capacity of testatrix but on contestant to prove undue influence. Denny v. Heirs of Pinney, 60 Vt. 524, 12 A. 108 (1888).

That testator was of sound and disposing mind is presumed; if incapacity existed, it was for those objecting to will to show it. Dean v. Heirs of Dean, 27 Vt. 746 (1855).

6. Evidence .

Extrinsic evidence is not admissible either to show that testator misunderstood the legal meaning of the will or was mistaken as to the import of ambiguous language. In re Estate of Barslow, 128 Vt. 192, 260 A.2d 374 (1969).

*7. Subscribing witness.

Where subscribing witness gave testimony against his attestation to effect that decedent was not of testamentary capacity, proponent, who was compelled by rule of law to call him, was at liberty not only to prove fact to be otherwise, but also to impeach credit of such witness by proving that he had made previous inconsistent declarations. Thornton's Executors v. Thornton's Heirs, 39 Vt. 122 (1866).

*8. Opinions.

Expert witness could not be asked whether testator or grantor was competent to make will or deed, since that involved a legal opinion as to what constituted such competency. Estate of Holton v. Ellis, 114 Vt. 471, 49 A.2d 210 (1946).

Nonexpert witness could give opinion as to sanity or insanity of another, when based upon conversations or dealings which he had had with such person, or upon his appearance, or upon any fact bearing upon his mental condition, within the witness' own knowledge and observation, he having first testified to such conversations, dealings, appearance or other observed facts, as basis for his opinion. Estate of Holton v. Ellis, 114 Vt. 471, 49 A.2d 210 (1946).

*9. Capacity before or after execution of will.

When will was executed after maturity of testator, and it appeared that there had been no change in his mental capacity since he reached maturity, evidence tending to show his mental condition at any time since that period, or within a reasonable time prior thereto, had a tendency to show his capacity at the time the will was executed. In re Wheelock's Will, 76 Vt. 235, 56 A. 1013 (1904).

II. MARRIED WOMEN
20. Common law.

Where at common law wife made valid bequest of chattels with her husband's consent, it amounted to a gift from him; and though his interest in the property passed according to will, it was not merely by force of it, nor because his consent added anything to her testamentary capacity. In re Peck's Estate, 80 Vt. 469, 68 A. 433 (1908).

21. Right to dispose by will.

Since this section gives every married woman of age and sound mind power to dispose of her real and personal estate regardless of her husband's consent, neither validity of her will nor its probate depends on such consent being shown, and surviving husband could not by probate of wife's will be estopped subsequently to elect to waive its provisions and take under statute. In re Peck's Estate, 80 Vt. 469, 68 A. 433 (1908).

22. Will made before marriage.

Where femme sole made a will, and married, and a considerable portion of property disposed of by will remained in her unaffected upon her death by any marital rights of her surviving husband, the will was entitled to be probated. Morton v. Onion, 45 Vt. 145 (1872).

§ 2. Deposit of will for safekeeping; delivery; final disposition.

  1. A will may be deposited for safekeeping in the Probate Division of the Superior Court for the district in which the testator resides on payment to the court of the applicable fee required by 32 V.S.A. § 1434(a)(17) . The register shall give to the testator a receipt, shall safely keep each will so deposited, and shall keep an index of the wills so deposited.
  2. Each will so deposited shall be enclosed in a sealed envelope on which is written the name and address of the testator and the names and addresses of the executors named in the will. The will shall not be opened until it is delivered to a person entitled to receive it or until otherwise disposed of by the court.
  3. During the life of the testator, that will shall be delivered only to the testator or in accordance with the testator's order in writing duly acknowledged or otherwise proved to the satisfaction of the court, but the testator's duly authorized legal guardian or attorney-in-fact may at any time inspect and copy the will in the presence of the judge or register.
  4. [Repealed.]
  5. Except as provided in this section, wills deposited for safekeeping or any index of wills so deposited are not open to public inspection during the life of the testator.

    Amended 1961, No. 122 , eff. May 16, 1961; 1971, No. 105 , § 1; 1985, No. 144 (Adj. Sess.), § 11; 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011; 2011, No. 33 , § 11b; 2017, No. 28 , § 2, eff. May 10, 2017; 2017, No. 195 (Adj. Sess.), § 1.

History

Source. V.S. 1947, §§ 2817-2820. 1947, No. 202 , § 2843. P.L. §§ 2745-2748. G.L. §§ 3201-3204. 1912, No. 102 , §§ 1-4.

Amendments--2017 (Adj. Sess.). Section amended generally

Amendments--2017. Subsec. (a): Substituted "Probate Division" for "register" preceding "shall give" in the second sentence.

Subsec. (c): Inserted ", court operations manager," following "judge" in the first sentence and deleted the former second sentence.

Amendments--2011. Subsec. (a): Deleted "of a fee of $2.00" following "payment" and inserted "of the fee required by 32 V.S.A. § 1434(a)(17)" following "court".

Amendments--2009 (Adj. Sess.) Subsec. (a): Substituted "probate division of the superior court" for "probate court."

Amendments--1985 (Adj. Sess.). Subsec. (a): Amended generally.

Subsec. (c): Substituted "that" for "such" preceding "will shall", "the testator" for "him" preceding "or in accordance with" and "the testator's" for "his" thereafter and preceding "duly authorized" in the first sentence.

Subsec. (d): Amended generally.

Subsec. (e): Added.

Amendments--1971. Subsec (a): Substituted "$2.00 to the court" for "fifty cents to the register" following "fee of" at the end of the first sentence and "the register" for "he" preceding "shall give" at the beginning of the second sentence.

Amendments--1961. Subsec. (c): Added "but his duly authorized legal guardian may at any time inspect and copy the will in the presence of the judge or register" following "witness" at the end of the first sentence.

Cross References

Cross references. Maintenance of records and papers by registers of probate generally, see Rule 79, V.R.P.P.

§ 3. Will may pass all property and after-acquired property.

A will may provide for the passage of all property the testator owns at death and all property acquired by the estate after the testator's death.

Amended 2017, No. 195 (Adj. Sess.), § 1.

History

Source. V.S. 1947, § 2821. P.L. § 2749. G.L. § 3205. P.S. § 2732. V.S. § 2347. R.L. § 2040. G.S. 49, § 2. R.S. 45, § 2.

Amendments--2017 (Adj. Sess.). Section amended generally.

§ 4. Repealed. 2017, No. 195 (Adj. Sess.), § 1.

History

Former § 4. Former § 4, relating to whole interest to pass; exception, was derived from V.S. 1947, § 2822; P.L. § 2750; G.L. § 3206; P.S. § 2733; V.S. § 2348; R.L. § 2041; G.S. 49, § 3; R.S. 45, § 3.

Annotations From Former § 4

1. Conveyance of lesser estate.

Where one clause of wife's will was "I give and bequeath to my husband, Nathan Keniston, the sum of two thousand dollars, also my farm in Greensboro known as the Conant place," and the following clause in terms disposed of what remained of the above mentioned property after husband's decease, husband took only a life estate. In re Keniston's Will, 73 Vt. 75, 50 A. 558 (1901).

2. Nature of estate.

Under this section an estate in fee is favored, and not a life estate, unless the contrary clearly appears, and where there is no language which can be considered as a gift over, it takes rather clear language to indicate that only a life estate is intended. In re Estate of Mattison, 122 Vt. 486, 177 A.2d 230 (1962).

§ 5. Execution of will; requisites.

A will shall be:

  1. in writing;
  2. signed in the presence of two or more credible witnesses by the testator or in the testator's name by some other person in the testator's presence and by the testator's express direction; and
  3. attested and subscribed by the witnesses in the presence of the testator and each other.

    (b) During the period that the Emergency Administrative Rules for Remote Notarial Acts adopted by the Vermont Secretary of State (the Emergency Rules) are in effect, the witnesses to a will signed in conformity with the Emergency Rules and pursuant to the self-proving will provisions of section 108 of this title shall be considered to be in the presence of the testator and each other whether or not the witnesses are physically present with the testator or the notary.

    Amended 2005, No. 106 (Adj. Sess.), § 1; 2017, No. 195 (Adj. Sess.), § 1; 2019, No. 96 (Adj. Sess.), § 1, eff. April 28, 2020.

History

Source. V.S. 1947, § 2823. P.L. § 2751. G.L. § 3207. P.S. § 2734. V.S. § 2349. R.L. § 2042. G.S. 49, § 6. R.S. 45, § 6. 1836, No. 14 , § 1. 1821, pp. 37, 38. R. 1787, p. 209, § 1. R. 1797, p. 212, § 7. R. 1787, p. 52.

Amendments--2019 (Adj. Sess.). Added the subsec. (a) designation and added subsec. (b).

Amendments--2017 (Adj. Sess.). Section amended generally.

Amendments--2005 (Adj. Sess.). Substituted "the testator's" for "his" in two places and "two" for "three" following "subscribed by".

Cross References

Cross references. Devise or legacy to witness, see § 10 of this title.

Nuncupative will, see § 6 of this title.

Probate of will conclusive as to execution, see § 102 of this title.

Subsequent incompetency of witnesses, see § 8 of this title.

Wills executed out of state, see § 112 of this title.

ANNOTATIONS

Analysis

1. Name of testator signed by another.

Declaration of purported testator that copy made at his request by another of draft or memorandum of will was his will, did not show compliance with requirement that if name of testator is signed to will by another in his presence, it must be by testator's prior express direction. In re Moon's Will, 107 Vt. 92, 176 A. 410 (1935).

Mere knowledge of testator that his name was being signed by another, or acquiescence or assent to signing, was insufficient. In re Moon's Will, 107 Vt. 92, 176 A. 410 (1935).

2. Knowledge of witnesses.

It is not necessary that witnesses to will should know character of instrument which they are attesting. In re Claflin's Will, 75 Vt. 19, 52 A. 1053 (1902).

Publication of will was sufficient where testatrix and witnesses severally signed it in presence of each other, although testatrix did not personally say that it was her will, but person who drew it for her announced to the witnesses in her presence that it was, and requested them to sign it as witnesses. Denny v. Heirs of Pinney, 60 Vt. 524, 12 A. 108 (1888).

Formal publication is not necessary; any communication by testator to witnesses, by words, signs, motions, or conduct, of idea that he intends to give a paper effect as his instrument is sufficient in law to constitute a publication. Dean v. Heirs of Dean, 27 Vt. 746 (1855); In re Claflin's Will, 73 Vt. 129, 50 A. 815 (1901); In re Claflin's Will, 75 Vt. 19, 52 A. 1053 (1902).

3. Number of witnesses.

Statutory requirement of signatures of three attesting witnesses for valid will is in accord with United States Constitution. In re Estate of Blais, 155 Vt. 650, 583 A.2d 1275 (mem.) (1990).

4. Competency of witnesses.

"Credible" under this section means "competent" at time of attestation under section 8 of this title. In re Potter's Will, 89 Vt. 361, 95 A. 646 (1915).

Will may be attested by taxpayer of town that is a beneficiary thereunder. In re Potter's Will, 89 Vt. 361, 95 A. 646 (1915).

Executor of a will who took no benefit under it was competent witness to its execution. Richardson v. Richardson, 35 Vt. 238 (1862).

5. Presence of witnesses.

Even though two witnesses duly attested and subscribed will in testator's presence and in the presence of each other, where a third person was called in from without, to whom testator and two witnesses acknowledged their respective signatures, and who then subscribed his name as a witness in presence of testator and of other two witnesses, will was not properly witnessed. In re Pope's Will, 85 Vt. 564 (1862).

It was sufficient if witnesses to will were together in presence of one another in such a way that they could see one another sign, whether they actually looked and saw or not. Heirs of Blanchard v. Heirs of Blanchard, 32 Vt. 62 (1859); In re Claflin's Will, 75 Vt. 19, 52 A. 1053 (1902).

Testator's acknowledgement, in the presence of witnesses, of his signature previously affixed, is equivalent to a signing in their presence; the acknowledgment need not be in express words. Adams v. Field, 21 Vt. 256 (1849); In re Claflin's Will, 73 Vt. 129, 50 A. 815 (1901).

6. Proof of execution.

When from lapse of time attesting witnesses were unable to recollect all facts essential to good execution, if their signatures and that of testator were proved, an attestation clause, showing compliance with all formalities required by law, was prima facie evidence of due execution of will. In re Claflin's Will, 73 Vt. 129, 50 A. 815 (1901).

Law of this state followed rule of English court of chancery, which, before a contested will could be established, required all subscribing witnesses to be examined, unless impracticable, as in cases where attesting witness was dead, insane, absent from state, or rendered incompetent subsequent to his attestation. Thornton's Executors v. Thornton's Heirs, 39 Vt. 122 (1866).

Where competent testimony was introduced, only fair balance of proof was necessary to prove execution of will. Dean v. Heirs of Dean, 27 Vt. 746 (1855).

Proof of due execution and attestation was admissible, though attestation clause was informal or entirely omitted, and if one of subscribing witnesses was dead, the genuineness of his signature could be proved. Dean v. Heirs of Dean, 27 Vt. 746 (1855).

7. Testamentary trusts.

Where owner of property purported to create trust inter vivos but no interest passed to beneficiary before death of settlor, intended trust was a testamentary trust and invalid, unless statutory requirements relating to validity of wills were complied with. Warner v. Burlington Federal Savings & Loan Ass'n, 114 Vt. 463, 49 A.2d 93 (1946).

8. Donatio mortis causa.

Where intestate promised plaintiff to pay her after his death a certain sum per year during time she should live with him and keep his house; and consideration of promise was in part the services to be rendered and in part a desire to make a mortuary gift from motives of affection, plaintiff could recover the former but not the latter. Frost v. Administrator of Frost, 33 Vt. 639 (1861).

Gift of all donor's personal property, in prospect of death, is a valid donatio mortis causa, but this is not true of a gift of real estate. Meach v. Meach, 24 Vt. 591 (1852).

Delivery of property as gift, to become absolute upon decease of donor, but made while donor is in health, and without reserving to him any power of revocation, cannot be supported as a donatio causa mortis. Smith v. Kittridge, 21 Vt. 238 (1849).

Where deceased in his last sickness made and delivered to his daughter his note, expressed to be for love and affection, and promising that she should have out of his estate fourteen hundred dollars, to be paid after his decease, note was void for want of legal and sufficient consideration, and could not be sustained as a donatio causa mortis. Holley v. Adams, 16 Vt. 206 (1844).

9. Promissory notes.

Mere fact that an instrument postponed payment until "on demand, after my decease" did not operate to give it character as a will or testament. Smith v. Lentini, 125 Vt. 526, 220 A.2d 291 (1966).

10. Alterations.

Where a properly signed and witnessed will was undated and consisted of ten typewritten pages, featuring handwritten red ink deletions, revisions and notations, even though the changes created some uncertainty, they were not sufficient to render the will facially invalid. Eckstein v. Estate of Dunn, 174 Vt. 575, 816 A.2d 494 (mem.) (2002).

11. Holographic wills.

Vermont does not have a statutory provision for holographic wills, and from this silence it is logical to infer that the legislature does not intend to exempt such handwritten wills from formal execution requirements. In re Estate of Cote, 176 Vt. 293, 848 A.2d 264 (2004).

§ 6. Repealed. 2017, No. 195 (Adj. Sess.), § 1.

History

Former § 6 Former § 6, relating to nuncupative wills, was derived from V.S. 1947, § 2824; P.L. § 2752; G.L. § 3208; P.S. § 2735; V.S. § 2350; R.L. § 2043; G.S. 49, § 8; R.S. 45, § 8; 1836, No. 14 , § 2; 1821, p. 38; R. 1797, p. 210 §§ 2, 3, 4.

Annotations From Former § 6

1. Construction.

This section is interpreted as limiting the right to dispose of property by a nuncupative will to personal property with a value of $200 or less. In re Estate of Cote, 176 Vt. 293, 848 A.2d 264 (2004).

§ 7. How made by soldier or sailor; military will.

  1. The provisions of this chapter shall not prevent a person in active military service from disposing of his or her estate as he or she might otherwise have done.
  2. Notwithstanding any other provision of law, a military will prepared and executed in compliance with, and containing a provision stating that the will is prepared pursuant to, 10 U.S.C. § 1044d shall be deemed to be legally executed and shall be of the same force and effect as if executed in the mode prescribed by the laws of this State.

    Amended 2005, No. 7 , § 1, eff. April 21, 2005; 2017, No. 195 (Adj. Sess.), § 1.

History

Source. V.S. 1947, § 2825. P.L. § 2753. G.L. § 3209. P.S. § 2736. V.S. § 2351. R.L. § 2044. G.S. 49, § 9. R.S. 45, § 9. 1836, No. 14 , § 2. 1821, p. 38. R. 1797, p. 211, § 5.

Amendments--2017 (Adj. Sess.). Subsec. (a): Substituted "a person in active military service from disposing" for "a soldier in active military service, or a mariner or seaman at sea, from disposing", and deleted "wages or other personal" preceding "estate".

Subsec. (b): Inserted "prepared and executed in compliance with, and" preceding "containing".

Amendments--2005. Added "military will" in the section heading, designated the existing provisions of the section as subsec. (a), and in that subsection, inserted "or her" following "his" and "or she" following "he", and added subsec. (b).

ANNOTATIONS

Analysis

1. Age.

An infant could not make a valid soldier's will. Goodell v. Pike, 40 Vt. 319 (1867).

2. Actual military service.

It is not necessary that soldier be in extremis; when he is in enemy country, performing military service, whether in camp, campaign or in battle, such service is actual military service, within the letter and spirit of this section. VanDeuzer v. Estate of Gordon, 39 Vt. 111 (1866).

3. Sufficiency of declarations.

Where deceased, while a soldier in actual military service, within the meaning of this section, declared to his comrades how his property should be divided and requested a comrade, the witness introduced to prove the will, to write to a person named what disposition he desired to be made of his property, these declarations and request were sufficient to make a good military testament. Gould v. Safford's Estate, 39 Vt. 498 (1866).

4. Witnesses.

A nuncupative will of a soldier in actual military service may be established under common law upon testimony of one witness only. Gould v. Safford's Estate, 39 Vt. 498 (1866).

§ 8. Repealed. 2017, No. 195 (Adj. Sess.), § 1.

History

Former § 8. Former § 8, relating to subsequent incompetency of witnesses, was derived from V.S. 1947, § 2826; P.L. § 2754; G.L. § 3210; P.S. § 2737; V.S. § 2352; R.L. § 2045; G.S. 49, § 10; R.S. 45, § 10.

Annotations From Former § 8

1. Time of attestation.

"Credible," under section 5 of this title, requiring that will be witnessed by three or more credible witnesses, means "competent" at time of attestation under this section. In re Potter's Will, 89 Vt. 361, 95 A. 646 (1915).

Question of competency is to be determined as of time when will was executed and not as of the time when offered for probate. Smith v. Jones, 68 Vt. 132, 34 A. 424 (1895).

§ 9. Repealed. 1967, No. 329 (Adj. Sess.), § 1, eff. March 23, 1968.

History

Former § 9, relating to recording copies of wills devising real estate and the probate thereof, was derived from V.S. 1947, § 2827; P.L. § 2757; G.L. § 3213; P.S. § 2740; V.S. § 2355; R.L. § 2048; G.S. 49, § 37; R.S. 45, § 37; 1821, p. 61; 1804, p. 126.

§ 10. Devise or legacy to witness.

Any beneficial devise or legacy made or given in a will to a subscribing witness to the will or to the spouse of a subscribing witness shall be voidable unless there are two other competent, subscribing witnesses to the will. Notwithstanding this section, a provision in the will for payment of a debt shall not be void or disqualify the creditor as a witness to the will.

Amended 2017, No. 195 (Adj. Sess.), § 1.

History

Source. V.S. 1947, § 2828. P.L. § 2755. G.L. § 3211. P.S. § 2738. V.S. § 2353. 1884, No. 109 . R.L. § 2046. G.S. 49, §§ 11, 12. R.S. 45, §§ 11, 12. 1821, p. 39. R. 1797, p. 212, §§ 9-14.

Amendments--2017 (Adj. Sess.). Section amended generally.

ANNOTATIONS

Analysis

1. Construction.

Legacy to witness who was not an heir was void; but legacy to witness who was an heir was valid. Clark v. Clark's Estate, 54 Vt. 489 (1882).

2. Spouse of witness.

Legatee who was heir at law of testator, and whose wife was one of only three attesting witnesses to will, was not entitled to take under will, notwithstanding the fact that this section places heir at law acting as attesting witness in a favored class. In re Knapp's Will, 102 Vt. 143, 146 A. 253 (1929).

3. Pleading.

Question whether legatee who was heir at law of testator, and whose wife was one of only three attesting witnesses to will, was entitled to take legacy was properly raised on proof of will, instead of on decree of distribution, since it involved question whether will was valid in toto or only in part. In re Knapp's Will, 102 Vt. 143, 146 A. 253 (1929).

§ 11. How revoked.

    1. A will is revoked: (a) (1)  A will is revoked:
      1. by executing a subsequent will that revokes the previous will expressly or by inconsistency; or
      2. by performing a revocatory act on the will, if the testator performed the act with the intent and for the purpose of revoking the will or part or if another individual performed the act in the testator's conscious presence and by the testator's direction.
    2. As used in this subsection, "revocatory act on the will" includes burning, tearing, canceling, obliterating, or destroying the will or any part of it. A burning, tearing, or canceling is a revocatory act on the will, whether or not the burn, tear, or cancellation touched any of the words on the will.
  2. The testator is presumed to have intended a subsequent will to replace rather than supplement a previous will if the subsequent will makes a complete disposition of the testator's estate. If this presumption arises and is not rebutted by clear and convincing evidence, the previous will is revoked and only the subsequent will is operative on the testator's death.
  3. The testator is presumed to have intended a subsequent will to supplement rather than replace a previous will if the subsequent will does not make a complete disposition of the testator's estate. If this presumption arises and is not rebutted by clear and convincing evidence, the subsequent will revokes the previous will only to the extent the subsequent will is inconsistent with the previous will, and each will is fully operative on the testator's death to the extent they are not inconsistent.

    Amended 2017, No. 195 (Adj. Sess.), § 1.

History

Source. V.S. 1947, § 2829. P.L. § 2756. G.L. § 3212. P.S. § 2739. V.S. § 2354. R.L. § 2047. G.S. 49, § 7. R.S. 45, § 7. 1836, No. 14 , § 1. 1821, p. 38. R. 1797, p. 209, § 1. R. 1797, p. 211, § 5.

Amendments--2017 (Adj. Sess.). Section amended generally.

ANNOTATIONS

Analysis

1. Implied revocation.

Purchase of land, after execution of a will, which would be included in general description of land devised by will, was no revocation of will, in whole or in part. Blandin v. Blandin, 9 Vt. 210 (1837).

Where testator conveyed whole of estate devised, it was of necessity a total revocation of will; and the plain sense of this section is that there shall be no implied revocations of wills and testaments except such as result ex necessitate rei. Graves v. Sheldon, 2 D. Chip. 71 (1824).

Alteration in circumstances of testator, after execution of will, will not in any case amount to a revocation in law. Graves v. Sheldon, 2 D. Chip. 71 (1824).

2. Partial revocation.

Where codicil made disposition of a portion of testator's property inconsistent with disposition previously made in original will, it operated pro tanto as a revocation of the original provision. Holley v. Larrabee, 28 Vt. 274 (1856).

Where part of estate devised was conveyed by testator, it was a revocation of will pro tanto only. Graves v. Sheldon, 2 D. Chip. 71 (1824).

Conveyance by testator of all his real estate was not an implied revocation of will, in toto. Parkhill v. Parkhill, (1819), Brayt. 239.

3. Alterations.

Alterations made by testator in duly executed will, which left original provisions decipherable and which were not made with formalities required to make them effectual, did not revoke instrument in whole or in part, unless intention so to do was made out, and will must be established as originally executed. In re Knapen's Will, 75 Vt. 146, 53 A. 1003 (1903).

4. Cancellation.

Where testator wrote below all the writing and near the middle of the sheet. "This will is hereby cancelled and annulled in full this 15th day of March, 1859," it was a revocation by "cancelling." Warner v. Warner's Estate, 37 Vt. 356 (1864).

5. Intention to revoke.

The mere intention or desire on the part of a testator to revoke his will, not carried into effect in method prescribed by this section, does not operate as a revocation. Heirs of Blanchard v. Heirs of Blanchard, 32 Vt. 62 (1859).

6. Later will.

Probate court properly allowed a testator's 2006 will, which revoked her 1997 mutual will, because there was no exception to revocation where the testator had previously made a contract for mutual wills, nor was there a rule that a will made in breach of such a contract was invalid; appellant's remedy for breach of the contract to make mutual wills would be to bring a claim for breach of contract against the estate. In re Estate of Inouye, - Vt. - , 237 A.3d 1239 (2020).

Where later will is relied upon to revoke will propounded, such later will must be established by same evidence as though it were presented for probate itself, and fact of revocation cannot be shown in any other way. In re Noyes' Will, 61 Vt. 14, 17 A. 743 (1888).

7. Revival of revoked will.

A former will may revive upon destruction of a later will which operates as a revocation of former, and republication of the former will is not necessary. In re Gould's Will, 72 Vt. 316, 47 A. 1082 (1900).

Whether or not former will revives upon destruction of later will which operates as revocation of former, depends upon intention of testator in destruction of later will. In re Gould's Will, 72 Vt. 316, 47 A. 1082 (1900).

8. Presumptions.

Where testator executed his will, and will was not found at time of his decease, this raised a presumption of his having destroyed it with intent to revoke it, but this was a presumption of fact, merely, which might be encountered by contrary proof, and the will thus established. Minkler v. Estate of Minkler, 14 Vt. 125 (1842).

CHAPTER 3. PROBATE AND PROCEDURE FOR CONSTRUCTION OF WILLS

Sec.

History

Applicability of 2017 (Adj. Sess.) amendment. 2017, No. 195 (Adj. Sess.), § 19 provides: "This act [which amended this chapter] shall take effect on July 1, 2018 and shall apply to wills executed or offered for admission on or after that date."

§ 101. Will not effective until allowed.

To be effective, a will must be allowed in the Probate Division of the Superior Court, or by appeal in the Civil Division of the Superior Court or the Supreme Court.

Amended 1985, No. 144 (Adj. Sess.), § 12; 2009, No. 154 (Adj. Sess.), § 120, eff. Feb. 1, 2011; 2017, No. 195 (Adj. Sess.), § 2.

History

Source. V.S. 1947, § 2830. P.L. § 2758. G.L. § 3214. P.S. § 2741. V.S. § 2356. R.L. § 2049. G.S. 49, § 20. R.S. 45, § 20.

Amendments--2017 (Adj. Sess.). Section amended generally.

Amendments--2009 (Adj. Sess.) Inserted "division of the superior" preceding "court".

Amendments--1985 (Adj. Sess.). Substituted "superior" for "county" preceding "or supreme".

Cross References

Cross references. Appeal to superior court from probate court, see Rule 72, Vermont Rules of Civil Procedure.

Appeal to supreme court from probate court, see Rule 13, Vermont Rules of Appellate Procedure.

ANNOTATIONS

1. Effect until proved.

A will passes neither real nor personal estate until it is proved and allowed. First National Bank v. Harvey, 111 Vt. 281, 16 A.2d 184 (1940).

§ 102. Allowance conclusive as to execution.

The allowance of a will shall be conclusive as to its due execution and validity.

Amended 1985, No. 144 (Adj. Sess.), § 13; 2017, No. 195 (Adj. Sess.), § 2.

History

Source. V.S. 1947, § 2830. P.L. § 2758. G.L. § 3214. P.S. § 2741. V.S. § 2356. R.L. § 2049. G.S. 49, § 20. R.S. 45, § 20.

Amendments--2017 (Adj. Sess.). Deleted "of real or personal estate" preceding "shall be conclusive" and inserted "and validity".

Amendments--1985 (Adj. Sess.). Substituted "allowance" for "probate" in the section heading and at the beginning of the section.

ANNOTATIONS

Analysis

1. Conclusiveness limited.

The maxim, expressio unius est exclusio alterius, applies to this section and its conclusiveness is impliedly so limited. In re Peck's Estate, 80 Vt. 469, 68 A. 433 (1908).

Probate of will was conclusive only as to its due execution. In re Carey's Estate, 49 Vt. 236 (1877).

2. Capacity of testator.

Probate of a will established capacity of testator, and evidence was not admissible on an appeal from a decree of distribution to prove his incapacity. Vermont Baptist State Convention v. Ladd's Estate, 59 Vt. 5, 9 A. 1 (1886).

3. Conditional wills.

Because a determination of whether a will is conditional necessarily involves construction of the will, that determination must be made subsequent to its allowance. Appellants' challenge to the conditional nature of the will following allowance was therefore timely and did not constitute a collateral attack on the allowance of the will. In re Estate of Holbrook, 201 Vt. 254, 140 A.3d 788 (2016).

§ 103. Custodian of will to deliver.

If a person has the custody of a will, within 30 days after learning of the death of the testator, the custodian shall deliver the will to the Probate Division of the Superior Court where venue lies or to the executor named in the will.

Amended 1985, No. 144 (Adj. Sess.), § 14; 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011; 2017, No. 195 (Adj. Sess.), § 2.

History

Source. V.S. 1947, § 2831. P.L. § 2759. G.L. § 3215. P.S. § 2742. V.S. § 2357. R.L. § 2050. G.S. 49, § 13. R.S. 45, § 13.

Amendments--2017 (Adj. Sess.). Substituted "the Probate Division of the Superior Court" for "a probate division of the superior court".

Amendments--2009 (Adj. Sess.) Substituted "probate division of the superior court" for "probate court."

Amendments--1985 (Adj. Sess.). Substituted "learning" for "he knows" preceding "of the death of the testator" and "the custodian" for "he" thereafter and "to a" for "into the" preceding "probate court" and "where venue lies" for "which has jurisdiction" thereafter.

Cross References

Cross references. Commitment of custodian retaining will, see § 106 of this title.

Penalty for neglect of duty, see § 105 of this title.

Venue of probate court proceedings, see § 311a of Title 4.

ANNOTATIONS

1. Mutilation by custodian.

Where surviving husband after death of his wife caused document purporting to be her last will and testament to be mutilated, husband's heirs at law, contesting such alleged will after his death, were in no better position than he would have been, and were affected by his acts and declarations in same manner and to same extent as he would have been had he been contestant himself. In re Campbell's Will, 102 Vt. 294, 147 A. 687 (1929).

§ 104. Executor to present will and accept or refuse trust.

  1. A person named executor in a will who has knowledge thereof shall file a death certificate and petition to open the decedent's estate in the Probate Division of the Superior Court where venue lies with reasonable promptness.
  2. A petition to open an estate need not be filed when no assets require probate administration. The named executor may file with the court an original death certificate and will without filing a petition to open an estate by notifying the court that no assets appear to require probate administration.

    Amended 1985, No. 144 (Adj. Sess.), § 15; 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011; 2017, No. 195 (Adj. Sess.), § 2.

History

Source. V.S. 1947, § 2832. P.L. § 2760. G.L. § 3216. P.S. § 2743. V.S. § 2358. R.L. § 2051. G.S. 49, § 14. R.S. 45, § 14. 1821, p. 40. R. 1797, p. 214, § 15. R. 1787, p. 51.

Amendments--2017 (Adj. Sess.). Section amended generally.

Amendments--2009 (Adj. Sess.) Substituted "probate division of the superior court" for "probate court."

Amendments--1985 (Adj. Sess.). Section amended generally.

Cross References

Cross references. Commencement of probate proceedings generally, see Rule 3, Vermont Rules of Probate Procedure.

Penalty for neglect of duty, see § 105 of this title.

ANNOTATIONS

Analysis

1. Withdrawal of petition.

Probate court had authority, in its discretion, to permit executor named in purported will to discontinue his petition for probate and to withdraw document from files of probate court for purpose of presenting it to proper court of another jurisdiction where it was alleged that testator died and that greater part of his property was located. In re Will of Pynchon, 115 Vt. 217, 55 A.2d 519 (1947).

2. Joint executors.

Probate court was not without jurisdiction to entertain proceedings for probate of purported will because it was presented by one of two persons named therein as executors against objection and protest of the other, since such persons were not then executors and rule that executors must act jointly in matters requiring judgment was not applicable. In re Estate of Holden, 110 Vt. 60, 1 A.2d 721 (1938).

§ 105. Repealed. 2017, No. 195 (Adj. Sess.), § 2.

History

Former § 105. Former § 105, relating to penalties, was derived from V.S. 1947, § 2833; P.L. § 2761; G.L. § 3217; P.S. § 2744; V.S. § 2359; R.L. § 2052; G.S. 49, § 15; R.S. 45, § 15; 1821, p. 40; R. 1797, p. 214, § 15; R. 1797, p. 219, § 21; R. 1787, pp. 51, 52 and amended by 2009, No. 154 (Adj. Sess.), § 238a.

Annotations From Former § 105

1. Causes of action.

Cause of action against custodian under section 103 of this title is different from cause of action against executor under section 104 of this title, and separate suits may be maintained at same time against person who is both executor and custodian. Richardson v. Fletcher, 76 Vt. 206, 56 A. 981 (1904).

2. Pleading.

This section is penal and in an action for forfeiture therein provided declaration must show that action is founded thereon and contain a substantive allegation that offense charged was committed against the form of statute. Richardson v. Fletcher, 74 Vt. 417, 52 A. 1064 (1902).

In action for a penalty created by this section, declaration in language of this section is sufficient, if every fact necessary to constitute offense is thereby charged or necessarily implied. Richardson v. Fletcher, 74 Vt. 417, 52 A. 1064 (1902).

§ 106. Duty of custodian of will; liability.

  1. After the death of a testator and on request of an interested person, a person having custody of a will of the testator shall deliver it with reasonable promptness to an appropriate court. A person who intentionally refuses or fails to deliver a will after being ordered to do so by the court in a proceeding brought for the purpose of compelling delivery may be subject to proceedings for civil contempt under 12 V.S.A. § 122 .
  2. A person who suffers damages as a result of another person's intentional failure to deliver a will shall have an action in Superior Court for damages and injunctive relief.

    Amended 1971, No. 199 (Adj. Sess.), § 17; 1985, No. 144 (Adj. Sess.), § 16; 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011; 2017, No. 195 (Adj. Sess.), § 2.

History

Source. V.S. 1947, § 2834. P.L. § 2762. G.L. § 3218. P.S. § 2745. V.S. § 2360. R.L. § 2053. G.S. 49, § 16. R.S. 45, § 16. R. 1797, p. 237, § 63.

Amendments--2017 (Adj. Sess.). Section amended generally.

Amendments--2009 (Adj. Sess.) Substituted "probate division of the superior court" for "probate court."

Amendments--1985 (Adj. Sess.). Section amended generally.

Amendments--1971 (Adj. Sess.). Substituted "commissioner of corrections" for "county jail" following "committed to the".

§ 107. Allowance of will; custody of property.

  1. If consents are filed by all the heirs at law and surviving spouse, a will may be allowed without hearing. If consents are not obtained, the court shall schedule a hearing and notice shall be given as provided by the Rules of Probate Procedure.
  2. Objections to allowance of the will must be filed in writing not less than seven days prior to the hearing. In the event that no timely objections are filed, the court may:
    1. allow the will on the testimony of only one of the subscribing witnesses if the witness testifies that the will was executed as provided in chapter 1 of this title; or
    2. allow the will without hearing if it meets criteria set out in section 108 of this title.
  3. After delivery of the will to the court, the person named as executor in the will shall have power pending allowance thereof, to assume custody of the estate for its preservation until a special or other administrator is appointed and qualifies.

    Amended 1975, No. 240 (Adj. Sess.), § 1; 1985, No. 144 (Adj. Sess.), § 17; 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011; 2017, No. 195 (Adj. Sess.), § 2; 2019, No. 36 , § 2; 2019, No. 167 (Adj. Sess.), § 15, eff. October 7, 2020.

History

Source. V.S. 1947, § 2835. P.L. § 2763. 1933, No. 157 , § 2550. 1921, No. 77 , § 1. G.L. § 3219. P.S. § 2746. V.S. § 2361. R.L. § 2054. G.S. 49, § 17. R.S. 45, § 17. 1821, p. 39..

Amendments--2019 (Adj. Sess.). Subsec. (b): Amended generally.

Amendments--2019. Subsec. (b): Substituted "seven" for "three business".

Amendments--2017 (Adj. Sess.). Section amended generally.

Amendments--2009 (Adj. Sess.) Subsec. (a): Substituted "probate division of the superior court" for "probate court."

Amendments--1985 (Adj. Sess.). Subsec. (a): Amended generally.

Subsec. (b): Deleted "probate" preceding "court" and substituted "allowance" for "probate" preceding "thereof".

Amendments--1975 (Adj. Sess.). Section amended generally.

Cross References

Cross references. Assignment of cases for hearing generally, see Rule 40, V.R.P.P.

Notice, see Rule 4, V.R.P.P.

ANNOTATIONS

Analysis

1. Notice.

Notice by publication in proceedings to probate will is not denial of due process of law under fourteenth amendment to United States Constitution. Everett v. Wing, 103 Vt. 488, 156 A. 393 (1931), cert. denied, 284 U.S. 690, 52 S. Ct. 266, 76 L. Ed. 582 (1932).

All persons interested in determining state or condition of will are constructively notified by publication of notice. Everett v. Wing, 103 Vt. 488, 156 A. 393 (1931), cert. denied, 284 U.S. 690, 52 S. Ct. 266, 76 L. Ed. 582 (1932).

2. Hearing.

Because the parties to this appeal, as heirs, devisees, legatees, and children, met the broad definition of "interested persons," the probate division should have scheduled a hearing on the allowance of the will, as the receipt of consents to allowance of the will did not mean that the hearing was no longer necessary. The probate division's failure to hold the hearing and to notify appellant grandson of it was of no consequence, however, as the grandson did receive notice of the allowance of the will and did not challenge it for many months thereafter. In re Estate of Holbrook, 201 Vt. 254, 140 A.3d 788 (2016).

§ 108. Self-proved wills.

A will may be self-proved as to its execution, by the sworn acknowledgment of the testator and the witnesses, made before a notary public or other official authorized to administer oaths in the place of execution in the following circumstances:

  1. The testator signed the instrument as the testator's will or expressly directed another to sign for the testator in the presence of two witnesses.
  2. The signing was the testator's free and voluntary act for the purposes expressed in the will.
  3. Each witness signed at the request of the testator, in the testator's presence, and in the presence of the other witness.
  4. To the best knowledge of each witness at the time of the signing, the testator was at least 18 years of age or emancipated by court order and was of sound mind and under no constraint or undue influence.

    Amended 1985, No. 144 (Adj. Sess.), § 18; 2017, No. 195 (Adj. Sess.), § 2.

History

Source. V.S. 1947, § 2836. 1947, No. 38 , § 1. P.L. § 2764. G.L. § 3220. P.S. § 2747. V.S. § 2362. R.L. § 2055. G.S. 49, § 18. R.S. 45, § 18.

Revision note. At the end of the first sentence, substituted "chapter 1 of this title" for "this chapter" to correct an error in the reference.

Amendments--2017 (Adj. Sess.). Section amended generally.

Amendments--1985 (Adj. Sess.). Section amended generally.

Cross References

Cross references. Evidence generally, see Rule 43, V.R.P.P.

ANNOTATIONS

1. Consent to allowances.

Because the parties to this appeal, as heirs, devisees, legatees, and children, met the broad definition of "interested persons," the Probate Division should have scheduled a hearing on the allowance of the will, as the receipt of consents to allowance of the will did not mean that the hearing was no longer necessary. The Probate Division's failure to hold the hearing and to notify appellant grandson of it was of no consequence, however, as the grandson did receive notice of the allowance of the will and did not challenge it for many months thereafter. In re Estate of Holbrook, 201 Vt. 254, 140 A.3d 788 (2016).

§ 109. Repealed. 2017, No. 195 (Adj. Sess.), § 2.

History

Former § 109. Former § 109, relating to when witness does not reside in State, was derived from V.S. 1947, § 2836; 1947, No. 38 , § 1; P.L. § 2764; G.L. § 3220; P.S. § 2747; V.S. § 2362; R.L. § 2055; G.S. 49, § 18; R.S. 45, § 18.

Annotations From Former § 109

1. Nonresident witness present in state.

When one of three attesting witnesses to a will had deceased, and another was present in court and testified to the signing, it was not incumbent on proponent to produce the other, who resided in another state and not within reach of process, nor to take his deposition, though he was in this state for a few days during pendency of cause. Denny v. Heirs of Pinney, 60 Vt. 524, 12 A. 108 (1888).

§ 110. Absence of witness, proof.

When it appears to the court that a will cannot be proven as otherwise provided by law, because one or more of the subscribing witnesses are unavailable or incapable of testifying, the court may admit the will to probate upon the testimony in person or by affidavit of at least one credible disinterested individual that the signature to the will is in the handwriting of the person whose will it purports to be, or upon other sufficient proof of the handwriting, and the will on its face complies with other legal requirements. This section shall not preclude the court, in its discretion, from requiring additional testimony of any available subscribing witness or proof of other pertinent facts and circumstances that the court deems necessary to admit the will to probate.

Amended 2017, No. 195 (Adj. Sess.), § 2.

History

Source. V.S. 1947, § 2838. 1945, No. 33 , § 1.

Amendments--2017 (Adj. Sess.). Section amended generally.

§ 111. Notice to beneficiaries.

Within 30 days after the allowance of a will, the court shall mail, postage paid, a written notice thereof to each beneficiary, devisee, or legatee named in the will, and to any other person who contested the allowance.

Amended 1985, No. 144 (Adj. Sess.), § 19; 2017, No. 195 (Adj. Sess.), § 2.

History

Source. V.S. 1947, § 2839. 1947, No. 39 , § 1. P.L. § 2766. G.L. § 3222. P.S. § 2749. V.S. § 2364. 1892, No. 47 .

Amendments--2017 (Adj. Sess.). Deleted "containing a devise or a bequest" following "will"; inserted ", and to any other person who contested the allowance" following "will".

Amendments--1985 (Adj. Sess.). Substituted "allowance" for "probate" following "after the", "court" for "judge" following "bequest the" and "the" for "such" following "named in".

Cross References

Cross references. Exemption of small estate proceedings from notice requirement, see Rule 80.3, V.R.P.P.

Notice generally, see Rule 4, V.R.P.P.

Papers and notices to be served on beneficiaries, see Rule 5.1, V.R.P.P.

§ 112. Wills made out of state.

  1. A last will and testament executed outside this State in the mode prescribed by the law, either of the place where executed or of the testator's domicile, shall be deemed to be legally executed and shall be of the same force and effect as if executed in the mode prescribed by the laws of this State, provided that the last will and testament is in writing and subscribed by the testator.
  2. When a will is allowed pursuant to subsection (a) of this section, the Probate Division of the Superior Court shall grant letters testamentary or letters of administration with the will annexed, and the letters shall extend to all the estate of the testator in this State. After the payment of enforceable debts and expenses of administration, the estate shall be disposed of according to the will so far as the will may operate upon it, and the residue shall be disposed of as is provided in case of estates in this State belonging to persons who are residents of another state or country.

    Amended 2017, No. 195 (Adj. Sess.), § 2.

History

Source. V.S. 1947, § 2840. P.L. § 2767. G.L. § 3223. 1917, No. 86 . P.S. § 2750. V.S. § 2365. R.L. § 2057. G.S. 49, § 20.

Amendments--2017 (Adj. Sess.). Designated the existing text as subsec. (a); substituted "outside" for "without" following "executed" and "the" for "such" preceding "will" in subsec. (a); and added subsec. (b).

§ 113. Wills allowed out of state - Generally.

A will allowed in any other state, or in a foreign country, according to the laws of that state or country, may be the subject of ancillary administration in the Probate Division of the Superior Court.

Amended 1971, No. 179 (Adj. Sess.), § 3; 1985, No. 144 (Adj. Sess.), § 20; 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011; 2017, No. 195 (Adj. Sess.), § 2.

History

Source. V.S. 1947, § 2841. P.L. § 2768. G.L. § 3224. P.S. § 2751. V.S. § 2366. R.L. § 2058. G.S. 49, § 21. R.S. 45, § 21. 1821, p. 39. R. 1797, p. 240, § 68.

Revision note. In the section heading, substituted "allowed" for "proved" for purposes of conformity with the text of the section, as amended.

Amendments--2017 (Adj. Sess.). Made minor stylistic changes.

Amendments--2009 (Adj. Sess.) Substituted "probate division of the superior court" for "probate court."

Amendments--1985 (Adj. Sess.). Section amended generally.

Amendments--1971 (Adj. Sess.). Reenacted section without change.

Cross References

Cross references. Ancillary administration generally, see Rule 80.2, V.R.P.P.

ANNOTATIONS

Analysis

1. Application.

This section and section 115 of this title were not intended to apply to a foreign probate of will of testator domiciled here, but only to such probate of will of a testator domiciled in some other state or country, who leaves property here on which his will can operate. Tarbell v. Walton, 71 Vt. 406, 45 A. 748 (1899).

2. Foreign probate.

Where resident of Vermont died testate, leaving property in another state upon which his will could act, such will could be probated in that state, although never offered for probate in Vermont, and when duly admitted to probate in that state, full force and effect would be given by courts of Vermont to the judgment of probate, but administration under such probate in that state was only ancillary, and did not draw to it any assets not having their situs therein. Walton v. Estate of Hall, 66 Vt. 455, 29 A. 803 (1894).

3. Title to real estate .

Where real estate situated in Vermont was owned by resident of another state and that person died in another state leaving a will, will must be probated in this state pursuant to sections 112-116 of this title in order for decree to be made to convey title according to terms of will. 1930-32 Op. Atty. Gen. 292.

*4. Relation back of subsequent probate.

Conveyance of land in this state by executors under a foreign will, before probate here, is a defective execution of the power; but a subsequent probate here relates back and cures the defect. Tudor v. Tudor, 80 Vt. 220, 67 A. 539 (1907).

*5. Foreign will as evidence.

A will, made and approved in another state, cannot be read in evidence in our courts on trial of a title derived under it to lands in this state, unless a copy of such will is filed and recorded in probate court in this state. Ives v. Allyn, 12 Vt. 589 (1840).

§ 114. Petition and hearing on.

  1. When a will has been allowed in any other state or country, as provided in section 113 of this title, an executor or other person interested may file a petition for ancillary administration. The petition shall contain:
    1. a duly authenticated copy of the decedent's will and the allowance thereof, where probate is required by the laws of the state or country; or
    2. a duly authenticated certificate of the legal custodian of the original will that the same is a true copy and that the will has become operative by the laws of the state or country, where probate is not required by the laws of the state or country; or
    3. a copy of a notarial will in possession of a notary in a foreign state or country entitled to the custody thereof and duly authenticated by the notary, the laws of the state or country requiring that the will remain in the custody of the notary.
  2. After receiving a petition for ancillary administration, the Probate Division of the Superior Court shall schedule a hearing and require notice as provided by the Rules of Probate Procedure. Objections to allowance of the will in Vermont shall be filed in writing not less than 14 business days prior to the hearing. In the event that no objections are filed, the will shall be allowed without hearing.

    Amended 1985, No. 144 (Adj. Sess.), § 21; 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011; 2017, No. 195 (Adj. Sess.), § 2.

History

Source. V.S. 1947, § 2842. 1947, No. 202 , § 2865. P.L. § 2769. G.L. § 3225. P.S. § 2752. 1904, No. 67 , § 1. 1900, No. 36 , § 1. V.S. § 2367. R.L. § 2059. G.S. 49, § 22. R.S. 45, § 22. R. 1797, p. 240, § 69.

Amendments--2017 (Adj. Sess.). Subsec. (a): Substituted "the" for "such" throughout the subsection.

Subsec. (b): Amended generally.

Amendments--2009 (Adj. Sess.) Subsec. (b): Substituted "Probate Division of the Superior Court" for "probate court."

Amendments--1985 (Adj. Sess.). Section amended generally.

§ 115. Order for filing.

If the instrument is allowed in this State as the last will and testament of the deceased, the copy shall be filed and recorded and the will shall have the same effect as if originally allowed in the same court.

Amended 1971, No. 179 (Adj. Sess.), § 4; 1985, No. 144 (Adj. Sess.), § 22; 2017, No. 195 (Adj. Sess.), § 2.

History

Source. V.S. 1947, § 2843. P.L. § 2770. G.L. § 3226. P.S. § 2753. V.S. § 2368. R.L. § 2060. G.S. 49, § 23. R.S. 45, § 23. 1821, p. 39. R. 1797, p. 240, §§ 68, 69.

Amendments--2017 (Adj. Sess.). Made minor stylistic changes.

Amendments--1985 (Adj. Sess.). Deleted "it appears to the court that" preceding "the instrument", substituted "is" for "ought to be" thereafter and deleted "proved and" following "originally".

Amendments--1971 (Adj. Sess.). Reenacted section without change.

ANNOTATIONS

1. Application.

This section and section 113 of this title were not intended to apply to foreign probate of will of testator domiciled here, but only to such probate of will of testator domiciled in some other state or country, who leaves property here on which his will can operate. Tarbell v. Walton, 71 Vt. 406, 45 A. 748 (1899).

§§ 116, 117. Repealed. 2017, No. 195 (Adj. Sess.), § 2.

History

Former §§ 116, 117. Former § 116, relating to administration under; estate, how disposed of, was derived from V.S. 1947, § 2844; P.L. § 2771; G.L. § 3227; P.S. § 2754; V.S. § 2369; R.L. § 2061; G.S. 49, § 24; R.S. 45, § 24; 1821, p. 39; R. 1797, p. 240, § 68 and amended by 2009, No. 154 (Adj. Sess.), § 238a.

Former § 117, relating to construction by Superior Court and Supreme Court, was derived from V.S. 1947, § 2845; P.L. § 2772; G.L. § 3228; P.S. § 2755; 1896, No. 40 , § 1; 1971, No. 185 (Adj. Sess.), § 236; 1973, No. 193 (Adj. Sess.), § 3 and amended by 1985, No. 144 (Adj. Sess.), § 23.

Annotations From Former § 116

1. Foreign executors.

Probate court should not remove executors living out of state, and grant administration to another, when fact of their living out of state was known at time of granting letters testamentary, when such executors had commenced a suit to recover a claim, and application for their removal was made by person sued. Wiley v. Brainerd, 11 Vt. 107 (1839).

Annotations From Former § 117

1. Construction with other laws.

Uniform declaratory judgments act did not repeal this section either expressly or by implication. O'Rourke v. Cleary, 104 Vt. 312, 158 A. 673 (1932).

Language of section 465 of this title, while clearly conferring upon probate court jurisdiction to determine whether bequest in will to widow was intended to be in lieu of her statutory right to one-third in value of real estate of which testator died seized in his own right, was not specific grant of exclusive power and did not preclude court of chancery from construing will under authority contained in this section, which was later enactment. O'Rourke v. Cleary, 104 Vt. 312, 158 A. 673 (1932).

2. Persons interested .

Only those having some interest in a will, or estate, or its proceeds are entitled to contest the probate of a will. In re Will of Norris, 123 Vt. 116, 183 A.2d 519 (1962).

*3. Stepchildren.

The stepchild of a testator has no right, as such, to contest the probate of a will. In re Will of Norris, 123 Vt. 116, 183 A.2d 519 (1962).

The stepchild of a testator, mentioned in a memorandum sought to be incorporated in a will by reference, is entitled to contest the probate of the will. In re Will of Norris, 123 Vt. 116, 183 A.2d 519 (1962).

4. Superior court jurisdiction.

To sustain proceeding in court of chancery a real doubt or dispute must have arisen and be specified in allegations of bill, which must also show that situation of estate and its administration is such that probate court cannot seasonably and adequately handle question and that resort to court of chancery was reasonably necessary. Mansur v. Tate, 96 Vt. 373, 119 A. 882 (1923); O'Rourke v. Cleary, 104 Vt. 312, 158 A. 673 (1932).

Before court of chancery takes jurisdiction of a case pending in probate court, it must decide whether any terms of will are in such doubt as to require intervention of court of chancery for purpose of giving them proper construction, and also whether terms of will are in dispute within meaning of this section. Harris v. Harris, 79 Vt. 22, 64 A. 75 (1906).

Before court of chancery will take jurisdiction it must appear not only that terms of the will are doubtful or in dispute, and that orators have requisite interest, but also that something substantial will be accomplished by the intervention of that court. Clark v. Peck's Executors, 79 Vt. 275, 65 A. 14 (1906).

*5. Limited to aid of probate court.

Jurisdiction of court of chancery in probate matters is not original, but special and limited and only in aid of probate court where powers of that court are inadequate. Murray v. Cartmell's Executor, 118 Vt. 178, 102 A.2d 853 (1954).

*6. Decree of distribution as condition precedent.

Where a will bequeathing property in trust was duly probated, and, trust having terminated, property was ready for distribution, court of chancery would not take jurisdiction of a bill brought by legatees to construe the will in advance of a decree of distribution by the probate court. Harris v. Harris, 79 Vt. 22, 64 A. 75 (1906).

*7. Pending appeal from probate court.

Court of chancery will not take jurisdiction of bill for construction of will, brought by devisee pending her appeal from probate court's final decree of distribution involving that question. Hall v. Lawton, 80 Vt. 535, 68 A. 657 (1908).

*8. Rights of surviving spouse.

Where husband made bequest to wife in will, and in regular course of administration probate court would not construe will and determine whether bequest was in lieu of widow's statutory right until final decree of distribution, at which time widow's right of election, if it was necessary for her to make one, would have passed, widow was entitled to have court of chancery construe will and determine question. O'Rourke v. Cleary, 104 Vt. 312, 158 A. 673 (1932).

9. Supreme court jurisdiction.

Supreme court, having determined that decedent did not intend bequest in will to be in lieu of widow's statutory rights, had exhausted its authority under section. O'Rourke v. Cleary, 105 Vt. 85, 163 A. 583 (1933).

10. Similar cases.

No two wills are exactly alike and decisions in the most similar cases are to be considered aids to construction rather than direct authorities. In re Estate of Mattison, 122 Vt. 486, 177 A.2d 230 (1962).

11. Language of will.

Where the terms of a written instrument are plain and unambiguous there is no room for construction and the instrument is to be given effect according to its own language. In re Estate of Davis, 126 Vt. 19, 220 A.2d 726 (1966).

The courts will look to the language of the will, rather than plausible presumptions of probable purpose, to define the purposes and objectives of the testator, if it can be given effect, and will turn to matters external to the will only when that instrument gives inadequate, or ambiguous directions. In re Estate of McCoy, 126 Vt. 28, 220 A.2d 469 (1966).

An interpretation of a will which is advantageous to the surviving widow, though favored by the law as a matter of policy, cannot overrule the express provisions of the instrument. In re Estate of McCoy, 126 Vt. 28, 220 A.2d 469 (1966).

12. Intention of testator.

When construing a will, the first and chief objective is to ascertain the testator's intention from the language of the will, since, so far as such intention may be legally carried out, it governs. In re Estate of Barslow, 128 Vt. 192, 260 A.2d 374 (1969).

It is the court's duty to declare and enforce testator's intention as ascertained from the will itself. In re Estate of Barslow, 128 Vt. 192, 260 A.2d 374 (1969).

The cardinal rule of interpreting wills, to which all other rules are servient, is that from the language used the meaning intended by the testator is to be ascertained and given legal effect insofar as legally possible. In re Estate of Davis, 126 Vt. 19, 220 A.2d 726 (1966).

Where a testator's intention is clear, courts should not resort to canons of construction in an attempt to unravel what needs no unraveling. In re Estate of Mattison, 122 Vt. 486, 177 A.2d 230 (1962).

In construing a will the first and chief object is to ascertain the intention of the testator, from the language used and to determine such intention, the court is to take the instrument by its four corners, consider it in all its parts, and give effect to its language read in the light of the relation of the parties concerned and the circumstances attending its execution. In re Estate of Mattison, 122 Vt. 486, 177 A.2d 230 (1962).

In construing a will, the court is not bound by what the testator meant to say, but what he meant by what he did say. In re Estate of Mattison, 122 Vt. 486, 177 A.2d 230 (1962).

13. Conditional devises.

A devise to a woman, conditioned that she remain unmarried, creates a determinable fee simple which becomes absolute upon her death unmarried. In re Estate of Mattison, 122 Vt. 486, 177 A.2d 230 (1962).

14. Future and uncertain contingencies.

Court of equity would not construe will as to future and uncertain contingencies; but only when such construction was needed to direct executor as to some present act. Morse v. Lyman, 64 Vt. 167, 24 A. 763 (1891).

15. Remainder interests.

The absence in a will of any provision for disposition of a remainder interest in real estate must be considered strong evidence that the testator intended to dispose of the fee by his will. In re Estate of Mattison, 122 Vt. 486, 177 A.2d 230 (1962).

16. Ineffectual residuary legacies.

A lapsed or otherwise ineffectual residuary legacy becomes part of the residue and passes with the balance of the residue to the remaining residuary legatees, unless a contrary disposition is demonstrably applicable. In re Slack Trust, 126 Vt. 37, 220 A.2d 472 (1966).

17. Reference to statutory rights.

The phrase "statutory rights", as used in clause of will to the effect that provision made for surviving widow was in lieu of her statutory rights, has reference to rights granted to the widow by statute and to which she is absolutely entitled. In re Estate of Davis, 126 Vt. 19, 220 A.2d 726 (1966).

18. Stock splits.

A stock split which directly results in a reduction of the market value per share of the original securities which were the subject of a bequest, does not result in a reduction of the substance of the bequest, unless a contrary intention on the part of the testator appears, so that the legatee in entitled to the increased number of shares in addition to those bequeathed. In re Estate of Barslow, 128 Vt. 192, 260 A.2d 374 (1969).

19. Evidence.

Extrinsic evidence is not admissible either to show that testator misunderstood the legal meaning of the will or was mistaken as to the import of ambiguous language. In re Estate of Barslow, 128 Vt. 192, 260 A.2d 374 (1969).

Cited. Eckstein v. Estate of Dunn, 174 Vt. 575, 816 A.2d 494 (mem.) (2002).

§ 118. Referral to Superior Court.

The Probate Division of the Superior Court may, on its own motion or upon motion of an interested person, refer a matter directly to the Civil Division of the Superior Court for the purpose of conserving judicial resources. The Probate Division shall consult with and obtain the consent of the Civil Division before making a transfer pursuant to this section. A decision of the Civil Division whether to consent to a transfer under this section shall be final and shall not be appealed.

Added 2017, No. 195 (Adj. Sess.), § 2.

CHAPTER 4. INTERNATIONAL WILLS

Sec.

§ 131. Definitions.

As used in this chapter:

  1. "International will" means a will executed pursuant to the requirements of this chapter.
  2. "Authorized person" and "person authorized to act in connection with international wills" means a person who is authorized to supervise the execution of international wills pursuant to this chapter or federal law, including a member of the diplomatic and consular service of the United States designated by Foreign Service Regulations.

    Added 2019, No. 11 , § 1.

§ 132. Validity.

  1. A will made in the form of an international will in compliance with the requirements of this chapter shall be valid with regard to form, irrespective of the place where it is made, the location of the assets, or the nationality, domicile, or residence of the testator.
  2. The invalidity of a will as an international will shall not affect its formal validity as a will of another kind.
  3. This chapter shall not apply to the form of testamentary dispositions made by two or more persons in one instrument.

    Added 2019, No. 11 , § 1.

§ 133. Requirements.

  1. An international will shall comply with the following requirements:
    1. The will shall be in writing. It need not be written by the testator, and may be written in any language, by hand or by any other means.
    2. The testator shall declare in the presence of two or more witnesses and of a person authorized to act in connection with international wills that the document is the testator's will and that the testator knows its contents. The testator is not required to inform the witnesses or the authorized person of the contents of the will.
    3. The testator shall sign the will in the presence of the witnesses and the authorized person. If the testator has previously signed the will, the testator shall acknowledge his or her signature in the presence of the witnesses and the authorized person.
    4. If the testator is unable to sign, the absence of his or her signature shall not affect the validity of the international will if the testator indicates the reason for his or her inability to sign and the authorized person notes it in the will. Although it is not required, in such cases any other person present, including the authorized person or one of the witnesses, may at the direction of the testator sign the testator's name for him or her. If another person signs for the testator, the authorized person shall note it in the will.
    5. The witnesses shall attest the will by signing it in the presence of the testator and each other.

      Added 2019, No. 11 , § 1.

§ 134. Other points of form.

  1. The signatures shall be placed at the end of the will. If the will consists of more than one sheet, each sheet shall be numbered and signed by the testator or, if he or she is unable to sign, by the person signing on the testator's behalf. If no person signs on the testator's behalf, the authorized person shall sign each sheet.
  2. The date of the will shall be the date of its signature by the authorized person, who shall note the date at the end of the will.
  3. The authorized person shall ask the testator whether he or she wishes to make a declaration concerning the safekeeping of the testator's will. If the testator makes such a declaration, the place where he or she intends to have his or her will kept shall be stated in the authorized person's certificate required by section 135 of this title.
  4. A will executed in compliance with section 133 of this title shall not be invalid because it does not comply with this section.

    Added 2019, No. 11 , § 1.

§ 135. Certificate.

  1. The authorized person shall sign and attach to the will a certificate establishing that there has been compliance with the requirements of this chapter for valid execution of an international will. The authorized person shall keep a copy of the certificate and deliver another copy to the testator.
  2. The certificate required by this section shall be in substantially the following form:

    Added 2019, No. 11 , § 1.

CERTIFICATE OF AUTHORIZED PERSON

I, ______________ (name, address, and capacity), a person authorized to act in connection with international wills, certify that on ______________ (date), at ______________ (place), testator______________ (testator's name, address, and date and place of birth), in my presence and that of the witnesses ______________ (name, address, and place and date of birth of first witness) and ______________ (name, address, and place and date of birth of second witness) has declared that the attached document is his or her will and that he or she knows its contents. I further certify that: (1) In my presence and in that of the witnesses: (A) the testator has signed the will or has acknowledged his or her signature previously affixed; or (B) (If Necessary) following a declaration of the testator stating that he or she was unable to sign his or her will for the following reason ______________, I have mentioned this declaration in the will and the signature has been affixed by ______________ (name and address). (2) The witnesses and I have signed the will. (3) Each page of the will has been signed by ______________ and numbered. (4) I have satisfied myself as to the identity of the testator and of the witnesses as designated above. (5) The witnesses met the conditions requisite to act as such according to the law under which I am acting. (6) (If Necessary) The testator has requested me to include the following statement concerning the safekeeping of his or her will: ______________. __________________________________________________________________________

(SIGNATURE, DATE AND PLACE OF EXECUTION)

§ 136. Effect of certificate.

In the absence of contrary evidence, a certificate by an authorized person that complies with the requirements of section 135 of this title shall be conclusive as to the formal validity of the instrument as a will under this chapter. The absence or irregularity of a certificate by an authorized person shall not affect the validity of a will under this chapter.

Added 2019, No. 11 , § 1.

§ 137. Revocation.

An international will may be revoked in any manner permitted by section 11 of this title.

Added 2019, No. 11 , § 1.

§ 138. Source and construction.

Sections 131-137 of this chapter are derived from the Annex to the Convention on Providing a Uniform Law on the Form of an International Will, October 26, 1973. When interpreting and applying this chapter, courts shall be guided by its international origin and by the need for uniformity in its interpretation.

Added 2019, No. 11 , § 1.

§ 139. Authorized persons.

A person who is admitted in good standing and has an active law license to practice law in this State shall be an authorized person in relation to international wills.

Added 2019, No. 11 , § 1.

§ 140. Self proved.

A will that meets the requirements of this chapter is self-proved and shall be allowed by the probate court.

Added 2019, No. 11 , § 1.

CHAPTER 5. NOTICE, PARTIES, AND REPRESENTATION IN ESTATE LITIGATION AND OTHER MATTERS

Sec.

§ 201. Repealed. 1985, No. 144 (Adj. Sess.), § 163.

History

Former § 201, which was derived from 1975, No. 240 (Adj. Sess.), § 6, related to method and time of giving notice in estate litigation.

§ 202. When parties bound by others.

In judicial proceedings involving trusts under this title or estates of decedents, minors, or persons under guardianship, the following apply:

  1. Persons are bound by orders binding others in the following cases:
    1. Orders binding the sole holder or all co-holders of a power of revocation or a presently exercisable general power of appointment, including one in the form of a power of amendment, bind other persons to the extent their interests (as objects, takers in default, or otherwise) are subject to the power.
    2. To the extent there is no conflict of interest between them or among persons represented, orders binding a guardian bind the person whose estate he or she controls; orders binding a trustee bind beneficiaries of the trust in proceedings to probate a will establishing or adding to a trust, to review the acts or accounts of a prior fiduciary and in proceedings involving creditors or other third parties; and orders binding a personal representative bind persons interested in the undistributed assets of a decedent's estate in actions or proceedings by or against the estate. If there is no conflict of interest and no guardian has been appointed, a parent may represent his or her minor child.
    3. An unborn or unascertained person who is not otherwise represented is bound by an order to the extent his or her interest is adequately represented by another party having a substantially identical interest in the proceeding.
  2. At any point in a proceeding, a Probate Division of the Superior Court may appoint a guardian ad litem to represent the interest of a minor, an incapacitated, unborn, or unascertained person, or a person whose identity or address is unknown, if the court determines that representation of the interest otherwise would be inadequate. If not precluded by conflict of interests, a guardian ad litem may be appointed to represent several persons or interests. The court shall set out its reasons for appointing a guardian ad litem as a part of the record of the proceeding.
  3. Parties shall be those persons so defined by the Rules of Probate Procedure.

    Added 1975, No. 240 (Adj. Sess.), § 6; amended 1985, No. 144 (Adj. Sess.), § 24; 2009, No. 20 , § 6; 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011.

History

Amendments--2009 (Adj. Sess.) Subdiv. (2): Substituted "probate division of the superior court" for "probate court."

Amendments--2009. In the undesignated paragraph, inserted "under this title" following "trusts".

Amendments--1985 (Adj. Sess.). Section amended generally.

Cross References

Cross references. Parties generally, see Rule 17, V.R.P.P.

Representative parties, see Rule 18, V.RP.P.

§ 203. Probate proceedings; service; jurisdiction over persons.

In proceedings within the exclusive jurisdiction of the Probate Division of the Superior Court where notice is required, interested persons may be bound by the orders of the court in respect to property in or subject to the laws of this State by notice in conformity with law or the Rules of Probate Procedure. An order is binding as to all who are given notice of the proceeding though less than all interested persons are notified.

Added 1975, No. 240 (Adj. Sess.), § 6; amended 1985, No. 144 (Adj. Sess.), § 25; 2009, No. 154 (Adj. Sess.), § 121, eff. Feb. 1, 2011.

History

Amendments--2009 (Adj. Sess.) Inserted "probate" preceding "proceedings" and deleted "within the exclusive jurisdiction of probate court" thereafter in the section heading, and inserted "division of the superior" preceding "court" in the first sentence.

Amendments--1985 (Adj. Sess.). Inserted "probate" preceding "court" in the section heading and inserted "probate" preceding "court where notice is required" and deleted "by this title or by rule" thereafter and substituted "law or the rules of probate procedure" for "section 201 of this title" following "conformity with" in the first sentence.

Cross References

Cross references. Notice and service in probate proceedings generally, see Rules 4, 5 and 5.1, V.R.P.P.

Parties and persons bound by orders generally, see Rules 17 and 18, V.R.P.P.

§ 204. Definitions.

As used in this title:

  1. "Interested person" includes heirs, devisees, legatees, children, spouses, creditors, beneficiaries, and any others having a property right in or claim against a trust estate or the estate of a decedent, or person under guardianship that may be affected by the proceeding. It also includes persons having priority for appointment as executor or administrator, and other fiduciaries representing interested persons. The parties at commencement of a probate proceeding shall include all interested persons. The meaning as it relates to particular persons may vary from time to time and shall be determined by the Rules of Probate Procedure.
  2. "Fiduciary" includes executor, administrator, special administrator, trustee, conservator, guardian of a minor, guardian of a spendthrift, voluntary guardian of a person who has an infirmity and total or limited guardian of an adult with a developmental disability, but excludes one who is merely a guardian ad litem.
  3. "Special fiduciary" means an individual appointed as provided by the Rules of Probate Procedure to assume the duties of a fiduciary suspended by the court.
  4. "Executor" includes administrator with the will annexed.

    Added 1975, No. 240 (Adj. Sess.), § 6; amended 1985, No. 144 (Adj. Sess.), § 26; 2013, No. 96 (Adj. Sess.), § 62.

History

2002. Rewrote the section heading by deleting "interested person; fiduciary; special fiduciary; executor" from the end and redesignated subsecs. (a)-(d) as subdivs. (1)-(4) to conform section to V.S.A. style.

Amendments--2013 (Adj. Sess.). Undesignated paragraph: Substituted "As" for "Whenever" preceding "used".

Subdiv. (1): Substituted "person under guardianship" for "ward" following "of a decedent, or".

Subdiv. (2): Substituted "a" for "an infirm" preceding "person" and "an" for "mentally disabled" preceding "adult", and inserted "who has an infirmity" following "person" and "with a developmental disability" following "adult".

Amendments--1985 (Adj. Sess.). Section amended generally.

Cross References

Cross references. Appointment of special fiduciary, see § 3011 of this title.

Fiduciaries generally, see Rule 67, VR.P.P.

Foreign fiduciaries and sureties, see Rule 68, V.R.P.P.

Parties in probate proceedings generally, see Rule 17, V.R.P.P.

ANNOTATIONS

Cited. In re Trust Estate of Flynn, 158 Vt. 268, 609 A.2d 984 (1992).

PART 2 Descent and Distribution

CHAPTER 41. SURVIVORS' RIGHTS AND ALLOWANCES

Sec.

Cross References

Cross references. Disclaimer of property interests, see § 1951 et seq. of this title.

§§ 401-408. Repealed. 2009, No. 55, § 4, eff. June 1, 2009.

History

Former § 401, relating to share of surviving spouse of decedent, was derived from V.S. 1947, § 3018; 1947, No. 202 , § 3041; P.L. § 2823; G.L. § 3278; P.S. § 2804; 1906, No. 83 , § 1; V.S. § 2418; 1888, No. 76 ; R.L. § 2108; G.S. 51, § 1. R.S. 47, § 1; 1838, No. 18 ; 1821, p. 55; 1804, p. 127. R. 1797, p. 224, § 31; 1793, p. 60; R. 1787, p. 59.

Former § 402, relating to waiver of will by surviving spouse, was derived from V.S. 1947, § 3019; 1947, No. 202 , § 3042; P.L. § 2824; G.L. § 3279; P.S. § 2805; 1906, No. 83 , § 2; V.S. § 2419; 1888, No. 76 .

Former § 403, relating to surviving spouse to receive household goods, was derived from V.S. 1947, § 3020; 1947, No. 202 , § 3043; P.L. § 2825; 1933, No. 157 , § 2612; 1919, No. 84 ; G.L. § 3281; P.S. § 2807; 1904, No. 68 , §§ 1, 2 and amended by 1985, No. 144 (Adj. Sess.), § 27.

Former § 403a, relating to surviving spouse; vessel, snowmobile, or all-terrain vehicle, was derived from 2001, No. 107 (Adj. Sess.), § 25.

Former § 404, relating to support of surviving spouse and family during settlement, was derived from 1953, No. 214 ; V.S. 1947, § 3021; 1947, No. 202 , § 3044; P.L. § 2826; G.L. § 3282; P.S. § 2808; V.S. § 2420; R.L. § 2109; G.S. 49, § 29; G.S. 51, § 1; R.S. 45, § 29; R.S. 47, § 1; 1838, No. 14 and amended by 1959, No. 262 , § 28 and 1985, No. 144 (Adj. Sess.), § 28.

Former § 405, relating to allowance to children before payment of debts, was derived from V.S. 1947, § 3022; P.L. § 2827; G.L. § 3283; P.S. § 2809; V.S. § 2421; R.L. § 2110; G.S. 51, § 1; R.S. 47, § 1; 1821, p. 51; 1803, p. 108 and amended by 1959, No. 262 , § 29.

Former § 406, relating to allowance to children, after payment of debts, was derived from V.S. 1947, § 3023; 1947, No. 202 , § 3046; P.L. § 2828; G.L. § 3284; P.S. § 2810; V.S. § 2422; R.L. § 2111; G.S. 57, § 1; R.S. 53, § 1; 1821, p. 50; R. 1797, p. 225, § 34.

Former § 407, relating to realty to be sold, if personalty insufficient, was derived from V.S. 1947, § 3024; P.L. § 2829; G.L. § 3285; P.S. § 2811; V.S. § 2423; R.L. § 2112; G.S. 57, § 2; 1846, No. 35 , § 1 and amended by 1985, No. 144 (Adj. Sess.), § 29.

Former § 408, relating to rules applicable to sales of realty, was derived from V.S. 1947, § 3025; P.L. § 2830; G.L. § 3286; P.S. § 2812; V.S. § 2424; R.L. § 2113; G.S. 57, § 3; 1846, No. 35 , § 2.

Annotations From Former § 401

1. Construction.

Statutory right of widow to one-third of deceased husband's personalty is analogous to homestead and dower rights, is to safeguard interests of wife, predicated upon sound public policy, and is highly favored by law. In re O'Rourke's Estate, 106 Vt. 327, 175 A. 24 (1934).

Change in statute providing that widow shall receive at least one-third of her "intestate" husband's personal estate, in revision of statute, by substituting words "of the deceased" for word "intestate," will not be presumed to have been intended to work change in law. In re O'Rourke's Estate, 106 Vt. 327, 175 A. 24 (1934).

2. Rights of surviving spouse .

Statutory rights of widow are homestead, statutory dower, and at least one-third of deceased husband's personal property and none can lawfully or effectually be willed away from her without her assent. In re O'Rourke's Estate, 106 Vt. 327, 175 A. 24 (1934).

*3. Vesting.

The widow's right, under this section, to her share of the personal estate vests in her immediately upon the death of her husband; the property being immediately hers, the income is likewise hers, just as is the income from a widow's one-third interest in her husband's real estate. In re Estate of Hurlbut, 126 Vt. 562, 238 A.2d 68 (1967).

Right of wife to any part of husband's personal property is inchoate as long as he lives, and may be defeated by him by sale or gift made in good faith, but at his decease her inchoate right immediately becomes vested and complete. In re O'Rourke's Estate, 106 Vt. 327, 175 A. 24 (1934).

*4. Testate estate.

There is no right in surviving spouse as to one-third interest in personal property, under this section, in a testate estate, unless such surviving spouse waives the provisions made for him or her in will of decedent. In re Estate of Sharon, 121 Vt. 322, 157 A.2d 475 (1960).

5. Conveyance to defraud spouse of share.

Conveyance by husband, shortly before his death, of all his property, both real and personal, to his children, without any valuable consideration, and with intent to defeat his wife of her dower and her share of the personal estate, securing at same time to himself possession, use and control of it during his life, is fraudulent against the claims of wife, and will be set aside. Thayer v. Thayer, 14 Vt. 107 (1842).

6. Effect of separation of spouses.

Though the wife separate from husband by reason of family discord, yet such separation is no forfeiture of her right of dower and her share of personal estate, though she may have no justifiable cause of separation. Thayer v. Thayer, 14 Vt. 107 (1842).

7. Decease of surviving spouse before assignment of share.

Decree of the probate court distributing estate of deceased husband is void so far as it includes money derived from sale of homestead right, or personal property, owned by his widow, whose death was subsequent to that of her husband, and whose estate was unadministered. Probate Court v. Winch, 57 Vt. 282 (1884).

One-third of personal estate of an intestate husband vests in his widow immediately upon his decease, and in case of decease of widow before assignment by probate court, the same passes to her legal representative. Estate of Johnson v. Estate of Johnson, 41 Vt. 467 (1868).

8. Intention of testator.

Where an intent on part of testator may be gathered that his surviving spouse shall take both a legacy and her statutory rights under this section, testator's intention will be given effect and no waiver will be required; but such an intent is conclusively excluded when testator leaves his entire estate to his widow. In re Estate of Sharon, 121 Vt. 322, 157 A.2d 475 (1960).

Where testator left legacy to his widow to be in addition to her statutory rights, she did not take against will, but under it, and since testator intended that she take both, his intention was to be given effect, it not being contrary to law. In re O'Rourke's Estate, 106 Vt. 327, 175 A. 24 (1934).

Widow could take statutory share under this section although given legacy under will, where testator so intended, since words "not lawfully disposed of by the deceased's last will" show that not all of personal estate could lawfully be disposed of by will, that part being the statutory share under section. In re O'Rourke's Estate, 106 Vt. 327, 175 A. 24 (1934).

9. Wearing apparel.

If it does not otherwise appear, the legal presumption is that a wife's wardrobe was furnished by husband, it being his duty to furnish it, and upon her decease it belongs to husband and is no part of wife's estate. In re Hall's Estate, 70 Vt. 458, 41 A. 508 (1898).

Neither the watch, or its chain, key and seals or the finger ring which were usually worn by a person when living, are to be deemed a part of his wearing apparel, which, after his decease, are to go to his widow; otherwise in reference to a bosom pin. Sawyer v. Heirs of Sawyer, 28 Vt. 249 (1856).

The sword and sword-belt, which an officer in the United States navy wore, in accordance with the regulations of the navy department, are not regarded as a part of his wearing apparel, but epaulets are. Sawyer v. Heirs of Sawyer, 28 Vt. 249 (1856).

10. Selection of property assigned to surviving spouse.

It is a legal exercise of the powers of the court of probate to determine the amount of the personal estate to which the widow is entitled, leaving it for her to make the selection of the articles, to make up the amount of the assignment from the inventory at their appraised value. Phelps v. Phelps, 16 Vt. 73 (1844).

Annotations From Former § 402

1. Purpose.

The statutory right of a widow to a specific share in the estate of her deceased husband is designed to protect the widow by assuring her at least her statutory share, in the same fashion as though her husband had died intestate. In re Estate of Davis, 129 Vt. 162, 274 A.2d 491 (1971).

2. Federal estate tax.

Although testator freed his surviving spouse of any tax burden on her share under will, when, under this section, widow elected to take against the will, she rejected the tax benefit, and her share became subject to the prior deduction of the federal estate tax from the net estate. In re Estate of Hurlbut, 126 Vt. 562, 238 A.2d 68 (1967).

3. Waiver by others.

The privilege under this section to waive the will is personal to the widow, and cannot be undertaken by her representative after her death. In re Estate of Davis, 129 Vt. 162, 274 A.2d 491 (1971).

Annotations From Former § 404

1. Right to allowance.

The surviving widow does not have an absolute right to have an allowance under this section. In re Estate of Davis, 126 Vt. 19, 220 A.2d 726 (1966).

An allowance under this section is not a statutory right and is not in the same class of rights as homestead and dower. In re Estate of Davis, 126 Vt. 19, 220 A.2d 726 (1966).

A widow is entitled to an allowance for maintenance, though there are no children. Heirs of Sawyer v. Sawyer, 28 Vt. 245 (1856).

2. Discretion of court.

Probate court may, in its discretion, grant or deny a surviving widow's application for an allowance under this section, or make a conditional award, depending on the circumstances and the provisions made for her in her husband's will. In re Estate of Davis, 126 Vt. 19, 220 A.2d 726 (1966).

The court has in all cases power to grant support to the widow and children pending settlement of an estate, whether or not there is a will, whether or not the widow waives the provisions of the will, and whether or not there is a residuary clause. In re Estate of Davis, 126 Vt. 19, 220 A.2d 726 (1966).

An allowance under this section is necessary for the immediate and continuing support of the widow, etc., and the order is within the discretion of the probate court, and conclusive. Leach v. Executor of Leach, 51 Vt. 440 (1879).

Amount of allowance was a matter resting in discretion of probate court, or of county court upon an appeal; and was not ordinarily subject to revision, upon exceptions, in supreme court. Heirs of Sawyer v. Sawyer, 28 Vt. 245 (1856).

3. Provisions in will.

The surviving widow does not waive her right to make application for an allowance pursuant to this section by taking under the will unless the will by clear and unequivocal language shows an intention by the testator that the provisions for his widow in the will are in lieu of her statutory allowance for support pending settlement. In re Estate of Davis, 126 Vt. 19, 220 A.2d 726 (1966).

Where oratrix was bequeathed a legacy and annuity by her husband's will, and, in good faith, appealed from the allowance of the will by the probate court, and during the pendency of the appeal the probate court allowed her unconditionally a certain sum from the estate for her support, this allowance was independent of her legacy and annuity under will, and executors or heirs could not treat it as in part payment thereof. Meech v. Weston, 33 Vt. 561 (1861).

4. Enforcement of order.

A judge of probate can lawfully cause an executor to be imprisoned, who wilfully refuses to perform an order of the probate court, directed to him to pay monthly certain sums of money for the maintenance of the testator's widow and children during the settlement of the estate. Leach v. Peabody, 58 Vt. 485, 2 A. 737 (1886).

5. Payment.

This section does not require the allowance to be made in advance of the expenditure. Heirs of Sawyer v. Sawyer, 28 Vt. 245 (1856); Huntley v. Denny, 65 Vt. 185, 26 A. 486 (1892).

6. Expense of administration.

An allowance for the surviving widow pursuant to this section is an expense of administration. In re Estate of Davis, 126 Vt. 19, 220 A.2d 726 (1966).

7. Reimbursement of executor.

Executor may reimburse himself for what he has properly expended in the support of the minors, whether he advanced this amount out of his private means, or took it from the specific funds of the estate. Huntley v. Denny, 65 Vt. 185, 26 A. 486 (1892).

8. Approval by court.

The amount paid to the surviving widow for support during administration of the estate may be approved by the probate court for the first time on final hearing of the executor's account. In re Estate of Davis, 126 Vt. 19, 220 A.2d 726 (1966).

9. Appeals.

An allowance for support of the surviving widow pursuant to this section becomes part of the final order and decree of the probate court and is subject to appeal on the factual question of necessity and reasonableness. In re Estate of Davis, 126 Vt. 19, 220 A.2d 726 (1966).

The factual issues of necessity and reasonableness, upon which an allowance for the surviving widow pursuant to this section is based, may only be reviewed by way of appeal to the county court. In re Estate of Davis, 126 Vt. 19, 220 A.2d 726 (1966).

If the factual issues upon which a discretionary order of the probate court allowing support for the surviving widow are not appealed to the county court, the facts which underlie the allowance are settled and binding upon appeal to the supreme court. In re Estate of Davis, 126 Vt. 19, 220 A.2d 726 (1966).

Cited. In re Estate of Prouty, 105 Vt. 66, 163 A. 566 (1933).

§ 409. Repealed. 1985, No. 144 (Adj. Sess.), § 163.

History

Former § 409, relating to assignment of estates not exceeding three hundred dollars, was derived from V.S. 1947, § 3026; P.L. § 2831; G.L. § 3287; P.S. § 2813; V.S. § 2425; 1888, No. 75 ; 1886, No. 57 ; 1882, No. 60 ; R.L. § 2114; G.S. 51, § 1; G.S. 53, § 2; 1843, No. 13 ; R.S. 47, § 1; 1827, No. 11 , § 3; 1821, p. 64; 1804, p. 27.

CHAPTER 42. DESCENT AND SURVIVORS' RIGHTS

SUBCHAPTER 1. GENERAL PROVISIONS

SUBCHAPTER 2. SURVIVORS' RIGHTS AND ALLOWANCES

SUBCHAPTER 3. DESCENT, OMITTED ISSUE, AND LAPSED LEGACIES

History

Applicability of 2017 (Adj. Sess.) amendment. 2017, No. 195 (Adj. Sess.), § 19 provides: "This act [which amended this chapter] shall take effect on July 1, 2018 and shall apply to wills executed or offered for admission on or after that date."

Subchapter 1. General Provisions

§ 301. Intestate estate.

  1. Any part of a decedent's estate not effectively disposed of by will passes by intestate succession to the decedent's heirs, except as modified by the decedent's will.
  2. A decedent's will may expressly exclude or limit the right of an individual or a class to inherit property. If such an individual or member of such a class survives the decedent, the share of the decedent's intestate estate that would have passed to that individual or member of such a class passes subject to any such limitation or exclusion set forth in the will.
  3. Nothing in this section shall preclude the surviving spouse of the decedent from making the election and receiving the benefits provided by section 319 of this title.

    Added 2009, No. 55 , § 5, eff. June 1, 2009.

History

Applicability of chapter. 2009, No. 55 , § 5 provides in relevant part: "Sec. 5 of this act [which enacted Chapter 42 of this title] shall apply only to the estates of persons dying on or after the effective date of Sec. 5 [June 1, 2009] of this act."

§ 302. Dower and curtesy abolished.

The estates of dower and curtesy are abolished.

Added 2009, No. 55 , § 5, eff. June 1, 2009

§ 303. Afterborn heirs.

For purposes of this chapter and chapter 1 of this title relating to wills, an individual in gestation at a particular time is treated as living at that time if the individual lives 120 hours or more after birth.

Added 2009, No. 55 , § 5, eff. June 1, 2009.

Subchapter 2. Survivors' Rights and Allowances

§ 311. Share of surviving spouse.

After payment of the debts, funeral charges, allowances to the surviving spouse and children pursuant to sections 316 and 317 of this title, and expenses of administration, the intestate share of the decedent's surviving spouse is as follows:

  1. The surviving spouse shall receive the entire intestate estate if no descendant of the decedent survives the decedent or if all of the decedent's surviving descendants are also descendants of the surviving spouse.
  2. In the event there shall survive the decedent one or more descendants of the decedent who are not descendants of the surviving spouse and are not excluded by the decedent's will from inheriting from the decedent, the surviving spouse shall receive one-half of the intestate estate.

    Added 2009, No. 55 , § 5, eff. June 1, 2009; amended 2017, No. 195 (Adj. Sess.), § 3.

History

Amendments--2017 (Adj. Sess.). Inserted "allowances to the surviving spouse and children pursuant to sections 316 and 317 of this title" following "charges," in the introductory paragraph.

§ 312. Surviving spouse to receive household goods.

Upon motion, the surviving spouse of a decedent may receive out of the decedent's estate all furnishings and furniture in the decedent's household. If any objection is made, the Probate Division of the Superior Court shall decide what, if any, of such personalty shall pass under this section. Goods and effects so assigned shall be in addition to the distributive share of the estate to which the surviving spouse is entitled under other provisions of law. In making a determination pursuant to this section, the Probate Division of the Superior Court may consider the length of the decedent's marriage or civil union, the sentimental and monetary value of the property, and the source of the decedent's interest in the property.

Added 2009, No. 55 , § 5, eff. June 1, 2009; amended 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011; 2017, No. 195 (Adj. Sess.), § 3.

History

Amendments--2017 (Adj. Sess.). Deleted "when the decedent leaves no descendants who object" following "household" in the first sentence and "by any of the descendants" following "made" in the second sentence.

Amendments--2009 (Adj. Sess.). Substituted "probate division of the superior court" for "court".

§ 313. Surviving spouse; vessel, snowmobile, or all-terrain vehicle.

Whenever the estate of a decedent who dies intestate consists principally of a vessel, snowmobile, or all-terrain vehicle, the surviving spouse shall be deemed to be the owner of the vessel, snowmobile, or all-terrain vehicle, and title to the vessel, snowmobile, or all-terrain vehicle shall automatically pass to the surviving spouse. The surviving spouse may register the vessel, snowmobile, or all-terrain vehicle pursuant to 23 V.S.A. § 3816 .

Added 2009, No. 55 , § 5, eff. June 1, 2009.

§ 314. Share of heirs other than surviving spouse.

  1. The balance of the intestate estate not passing to the decedent's surviving spouse under section 311 of this title passes to the decedent's descendants by right of representation.
  2. If there is no taker under subsection (a) of this section, the intestate estate passes in the following order:
    1. to the decedent's parents equally if both survive or to the surviving parent;
    2. to the decedent's siblings and the descendants of any deceased siblings by right of representation;
    3. one-half of the intestate estate to the decedent's paternal grandparents equally if they both survive or to the surviving paternal grandparent and one-half of the intestate estate to the decedent's maternal grandparents equally if they both survive or to the surviving maternal grandparent and if decedent is survived by a grandparent, or grandparents on only one side, to that grandparent or those grandparents;
    4. in equal shares to the next of kin in equal degree.
  3. If property passes under this section by right of representation, the property shall be divided into as many equal shares as there are children or siblings of the decedent, as the case may be, who either survive the decedent or who predecease the decedent leaving surviving descendants.

    Added 2009, No. 55 , § 5, eff. June 1, 2009.

§ 315. Parent and child relationship.

  1. For the purpose of intestate succession, an individual is the child of his or her parents, regardless of their marital status, but a parent shall not inherit from a child unless the parent has openly acknowledged the child and not refused to support the child.
  2. The parent and child relationship may be established in parentage proceedings under Title 15C.
  3. A parent shall not inherit from a child conceived of sexual assault who is the subject of a parental rights and responsibilities order issued pursuant to 15 V.S.A. § 665(f) .

    Added 2009, No. 55 , § 5, eff. June 1, 2009; amended 2017, No. 44 , § 6, eff. May 23, 2017; 2017, No. 195 (Adj. Sess.), § 3.

History

2018. The text of this section is based on the harmonization of two amendments. This section was amended by 2017, No. 44 , § 6 and 2017, No. 195 (Adj. Sess.), § 3, resulting in two versions of this section. In order to reflect all of the changes enacted by the Legislature in 2017 and 2018, the text of these two acts were merged to arrive at a single version of this section. The changes that each of the amendments made are described in amendment notes set out below.

Amendments--2017 (Adj. Sess.). Substituted "Title 15C" for "subchapter 3A of chapter 5 of Title 15" at the end of the second sentence.

Amendments--2017. Added the subsec. (a) and (b) designations; made stylistic changes in subsec. (b); and added subsec. (c).

§ 316. Allowances for surviving spouse and family during administration.

The Probate Division of the Superior Court may make reasonable allowance for the necessary expenses of support and maintenance of the surviving spouse and minor children or either, constituting the family of a decedent, out of the personal estate or the income of real or personal estate from date of death until settlement of the estate, but for no longer a period than until their shares in the estate are assigned to them or, in case of an insolvent estate, for not more than eight months after administration is granted. This allowance may take priority, in the discretion of the court, over debts of the estate.

Added 2009, No. 55 , § 5, eff. June 1, 2009; amended 2009, No. 154 (Adj. Sess.), § 236, eff. Feb. 1, 2011; 2017, No. 195 (Adj. Sess.), § 3.

History

Amendments--2017 (Adj. Sess.). Substituted "allowance for" for "support of" and "administration" for "settlement" in the section heading, inserted "necessary" preceding "expenses" and inserted "support and" preceding "maintenance" in the first sentence.

Amendments--2009 (Adj. Sess.). Substituted "probate division of the superior court" for "probate court".

§ 317. Allowance to children before payment of debts.

The court may make reasonable allowance for the necessary expenses of support and maintenance of any children of the decedent until they reach 18 years of age. The court may order the executor or administrator to retain sufficient estate assets for that purpose, except where some provision is made by will for their support. The allowance shall be made before any distribution of the estate among creditors, heirs, or beneficiaries by will.

Added 2009, No. 55 , § 5, eff. June 1, 2009; amended 2017, No. 195 (Adj. Sess.), § 3.

History

Amendments--2017 (Adj. Sess.). Section amended generally.

§ 318. Allowance to children after payment of debts.

Before any partition or division of an estate among the heirs or beneficiaries by will, an allowance may be made for the necessary expenses of support and maintenance of the children of the decedent until they reach 18 years of age. The Probate Division of the Superior Court may order the executor or administrator to retain sufficient estate assets for that purpose, except where some provision is made by will for their support.

Added 2009, No. 55 , § 5, eff. June 1, 2009; amended 2009, No. 154 (Adj. Sess.), § 236, eff. Feb. 1, 2011; 2017, No. 195 (Adj. Sess.), § 3.

History

Amendments--2017 (Adj. Sess.). Substituted "after" for "before" preceding "payment" in the section heading, and substituted "of support and maintenance of" for "of the support of" and "until they reach 18 years of age" for "under 18 years of age until they arrive at that age" in the first sentence.

Amendments--2009 (Adj. Sess.). Substituted "probate division of the superior court" for "probate court".

§ 319. Elective share of surviving spouse; notice of rights.

  1. Subject to subsection (d) of this section, a surviving spouse may elect to waive the provisions of the decedent's will and in lieu thereof elect to take one-half of the balance of the probate estate, after the payment of allowances, claims, and expenses.
  2. The surviving spouse must be living at the time this election is made. An election under this section may be signed on behalf of the surviving spouse by a guardian, an agent, or an attorney-in-fact under a power of attorney that:
    1. expressly grants the authority to make the election; or
      1. grants the agent or attorney-in-fact the authority to act in the management and disposition of the principal's property that is as broad or comprehensive as the principal could exercise for himself or herself; and (2) (A) grants the agent or attorney-in-fact the authority to act in the management and disposition of the principal's property that is as broad or comprehensive as the principal could exercise for himself or herself; and
      2. does not expressly exclude the authority to make the election.
  3. An agent or attorney-in-fact may petition the Probate Division of the Superior Court to determine whether a power of attorney described in subdivision (b)(2) grants the agent or attorney-in-fact authority that is as broad or comprehensive as that which the principal could exercise for himself or herself.
  4. A surviving spouse may not elect against a deceased spouse's will under this section if the surviving spouse has waived the right to elect against the deceased spouse's will pursuant to section 323 of this title.
    1. The court shall provide the surviving spouse with a notice of the rights of the surviving spouse not later than 30 days from the filing of the initial inventory. (e) (1)  The court shall provide the surviving spouse with a notice of the rights of the surviving spouse not later than 30 days from the filing of the initial inventory.
    2. Unless otherwise ordered by the court, a surviving spouse shall file with the court a written election to waive the provisions of a decedent's will within four months of the later of the following dates:
      1. the date of service of the notice of rights of surviving spouse; or
      2. the date of service of the inventory.
  6. Upon the filing of any subsequent or amended inventory or any accounting that reports previously undisclosed property owned by the decedent as of the date of death, the surviving spouse shall have 30 days from the date of service of the filing to elect against the newly reported property, unless otherwise ordered by the court.

    Added 2009, No. 55 , § 5, eff. June 1, 2009; amended 2017, No. 195 (Adj. Sess.), § 3.

History

Amendments--2017 (Adj. Sess.). Section amended generally.

§ 320. Effect of divorce order.

A final divorce or dissolution order from any state shall nullify a gift by will to an individual who was the decedent's spouse at the time the will was executed and any nomination of the spouse as executor, executrix, trustee, guardian, or other fiduciary as named in the will, if the decedent was no longer married to or in a civil union with that individual at the time of death, unless the decedent's will specifically states to the contrary.

Added 2009, No. 55 , § 5, eff. June 1, 2009; amended 2017, No. 195 (Adj. Sess.), § 3.

History

Amendments--2017 (Adj. Sess.). Section amended generally.

§ 321. Conveyance to defeat spouse's interest.

  1. A voluntary transfer of any property by an individual during a marriage or civil union and not to take effect until at or after the individual's death, made without adequate consideration and for the primary purpose of defeating a surviving spouse's right to claim the survivor's intestate or elective share of the decedent's property so transferred, shall be void and inoperative to bar the claim, unless the surviving spouse waived the survivor's right to make a claim against the deceased spouse's estate or the property transferred pursuant to section 323 of this title. If the surviving spouse has not signed a waiver of spousal rights pursuant to section 323 of this title, then the decedent shall be deemed at the time of his or her death to be the owner of the property and the court may:
    1. increase the surviving spouse's share of the decedent's probate estate in an amount the court deems reasonable to account for the right the surviving spouse would otherwise have had in the property so transferred; or
    2. if the assets of the decedent's probate estate are insufficient to account for the right the surviving spouse would otherwise have had in the property, then order any other equitable relief the court deems appropriate.
  2. Neither this section nor any other provision of this title shall be construed to affect an enhanced life estate deed. As used in this subsection, "enhanced life estate deed," also known as a "Ladybird deed," shall mean a deed that conveys a future interest in real estate that is revocable or otherwise subject to limitation, with the transfer of the remaining title rights to take place when the grantor dies.

    Added 2009, No. 55 , § 5, eff. June 1, 2009; amended 2017, No. 195 (Adj. Sess.), § 3.

History

Amendments--2017 (Adj. Sess.). Section amended generally.

ANNOTATIONS

Analysis

1. "Share".

Term "share" in the statute entitled "Conveyance to defeat spouse's interest" plainly refers to a surviving spouse's elective or intestate share. This is consistent with the history of the law in this area, the statutory scheme, and the purpose of the statute. Hayes v. Hayes, 208 Vt. 380, 198 A.3d 1263 (2018).

2. Election.

Because the wife took under her husband's will, she was barred from seeking her statutory share of his estate. Hayes v. Hayes, 208 Vt. 380, 198 A.3d 1263 (2018).

§ 322. Unlawful killing affecting inheritance.

Notwithstanding sections 311 through 314 of this title or provisions otherwise made, in any case in which an individual is entitled to inherit or receive property under the last will of a decedent, or otherwise, the individual's share in the decedent's estate shall be forfeited and shall pass to the remaining heirs or beneficiaries of the decedent if the individual intentionally and unlawfully kills the decedent. In any proceedings to contest the right of an individual to inherit or receive property under a will or otherwise, the record of that individual's conviction of intentionally and unlawfully killing the decedent shall be admissible in evidence and shall conclusively establish that the individual did intentionally and unlawfully kill the decedent.

Added 2009, No. 55 , § 5, eff. June 1, 2009; amended 2017, No. 195 (Adj. Sess.), § 3.

History

Amendments--2017 (Adj. Sess.). Substituted "the" for "such" preceding "individual's" and "individual".

§ 323. Written waiver of spousal rights.

  1. At any time before or during a marriage, a spouse may waive the right to an elective share of a deceased spouse's estate, waive the right to a homestead or other allowance, and waive any other spousal rights or interest in property, in whole or in part, by a written instrument signed by the waiving spouse.
  2. A written waiver of spousal rights is presumed to be valid unless the party contesting the waiver demonstrates that:
    1. the waiver was not voluntary, or was made as a result of fraud, duress, or coercion;
    2. the waiver was unconscionable when signed or is unconscionable in its application due to a material change in circumstances that arose subsequent to the execution of the instrument through no fault or no action of the contesting party;
    3. before signing the waiver, the waiving spouse was not provided fair and reasonable disclosure of the property and financial obligations of the decedent; or
    4. before signing the waiver, the waiving spouse did not have an opportunity for meaningful access to independent counsel.
  3. A waiver under this section may be signed on behalf of a waiving spouse by a guardian or by an agent or an attorney-in-fact under a power of attorney that:
    1. expressly grants the authority to make the election; or
      1. grants the agent or attorney-in-fact the authority to act in the management and disposition of the principal's property that is as broad or comprehensive as the principal could exercise for himself or herself; and (2) (A) grants the agent or attorney-in-fact the authority to act in the management and disposition of the principal's property that is as broad or comprehensive as the principal could exercise for himself or herself; and
      2. does not expressly exclude the authority to make the election.
  4. An agent or attorney-in-fact may petition the Probate Division of the Superior Court to determine whether a power of attorney described in subdivision (c)(2) grants the agent or attorney-in-fact authority that is as broad or comprehensive as that which the principal could exercise for himself or herself.

    Added 2017, No. 195 (Adj. Sess.), § 3.

Subchapter 3. Descent, Omitted Issue, and Lapsed Legacies

§ 331. Degrees; how computed: kindred of half-blood.

Kindred of the half-blood shall inherit the same share they would inherit if they were of the whole blood.

Added 2009, No. 55 , § 5, eff. June 1, 2009.

§ 332. Share of afterborn child.

When a child of a testator is born after the making of a will and provision is not made in the will for that child, he or she shall have the same share in the estate of the testator as if the testator had died intestate unless it is apparent from the will that it was the intention of the testator that provision should not be made for the child.

Added 2009, No. 55 , § 5, eff. June 1, 2009; amended 2017, No. 195 (Adj. Sess.), § 3.

History

Amendments--2017 (Adj. Sess.). Deleted "therein" preceding "made" and inserted "in the will" following "made".

§ 333. Share of child or descendant of child omitted from will.

When a testator omits to provide in the testator's will for any child of the testator, or for the descendants of a deceased child, and it appears that the omission was made by mistake or accident, the child or descendants, as the case may be, shall have and be assigned the same share of the estate of the testator as if the testator had died intestate.

Added 2009, No. 55 , § 5, eff. June 1, 2009; amended 2017, No. 195 (Adj. Sess.), § 3.

History

Amendments--2017 (Adj. Sess.). Substituted "the testator's" for "his or her" preceding "will" and "child of the testator" for "of his or her children" following "any".

§ 334. Afterborn and omitted child; from what part of estate share taken.

When a share of a testator's estate is assigned to a child born after the making of a will, or to a child or the descendant of a child omitted in the will, the share shall be taken first from the estate not disposed of by the will, if there is any. If that is not sufficient, so much as is necessary shall be taken from the devisees or legatees in proportion to the value of the estate they respectively receive under the will. If the obvious intention of the testator, as to some specific devise, legacy, or other provision in the will, would thereby be defeated, the specific devise, legacy, or provision may be exempted from the apportionment and a different apportionment adopted in the discretion of the court.

Added 2009, No. 55 , § 5, eff. June 1, 2009; amended 2017, No. 195 (Adj. Sess.), § 3.

History

Amendments--2017 (Adj. Sess.). Substituted "the" for "such" preceding "apportionment and" in the last sentence.

§ 335. Beneficiary dying before testator; descendants to take.

When a testamentary gift is made to a child or other kindred of the testator, and the designated beneficiary dies before the testator, leaving one or more descendants who survive the testator, the descendants shall take the gift that the designated beneficiary would have taken if the designated beneficiary had survived the testator, unless a different disposition is required by the will.

Added 2009, No. 55 , § 5, eff. June 1, 2009; amended 2017, No. 195 (Adj. Sess.), § 3.

History

Amendments--2017 (Adj. Sess.). Substituted "the" for "such" preceding "descendants" and "the designated beneficiary" for "he or she" preceding "had".

§ 336. Individual absent and unheard of; share of estate.

If an individual entitled to a distributive share of the estate of a decedent is absent and unheard of for six years, two of which are after the death of the decedent, the court in which the decedent's estate is pending may order the share of the absent individual distributed in accordance with the terms of the decedent's will or the laws of intestacy as if the absent individual had not survived the decedent. If the absent individual proves to be alive, he or she shall be entitled to the share of the estate notwithstanding prior distribution, and may recover in an action on this statute any portion thereof that any other individual received under order. Before an order is made for the payment or distribution of any money or estate as authorized in this section, notice shall be given as provided by the Vermont Rules of Probate Procedure.

Added 2009, No. 55 , § 5, eff. June 1, 2009; amended 2017, No. 195 (Adj. Sess.), § 3.

History

Amendments--2017 (Adj. Sess.). In the first sentence, deleted "probate" preceding "court" and substituted "the" for "such" preceding "absent individual had".

§ 337. Requirement that individual survive decedent for 120 hours.

Except as provided in the decedent's will, an individual who fails to survive the decedent by 120 hours is deemed to have predeceased the decedent for purposes of homestead allowance, exempt property, intestate succession, and taking under decedent's will, and the decedent's heirs and beneficiaries shall be determined accordingly. If it is not established by clear and convincing evidence that an individual who would otherwise be an heir or beneficiary survived the decedent by 120 hours, it is deemed that the individual failed to survive for the required period. This section is not to be applied if its application would result in escheat.

Added 2009, No. 55 , § 5, eff. June 1, 2009.

§ 338. Distribution; order in which assets appropriated; abatement.

    1. Except as provided in subsection (b) of this section, shares of distributees given under a will abate, without any preference or priority as between real and personal property, in the following order: (a) (1)  Except as provided in subsection (b) of this section, shares of distributees given under a will abate, without any preference or priority as between real and personal property, in the following order:
      1. property not disposed of by the will;
      2. residuary devises and bequests;
      3. general devises and bequests;
      4. specific devises and bequests.
    2. For purpose of abatement, a general devise or bequest charged on any specific property or fund is a specific devise or bequest to the extent of the value of the property on which it is charged, and upon the failure or insufficiency of the property on which it is charged, a general devise or bequest to the extent of the failure or insufficiency. Abatement within each classification is in proportion to the amounts of property each of the beneficiaries would have received if full distribution of the property had been made in accordance with the terms of the will.
  2. If the will expresses an order of abatement or if the testamentary plan or the express or implied purpose of a devise or bequest would be defeated by the order of abatement listed in subsection (a) of this section, the shares of the distributees shall abate as may be necessary to give effect to the intention of the testator.
  3. If the subject of a preferred devise or bequest is sold or used incident to administration, abatement shall be achieved by appropriate adjustments in, or contribution from, other interests in the remaining assets.

    Added 2009, No. 55 , § 5, eff. June 1, 2009.

CHAPTER 43. ESTATES IN LIEU OF DOWER AND CURTESY

Sec.

Cross References

Cross references. Disclaimer of property interests, see § 1951 et seq. of this title.

Surviving spouses interest in homestead, see § 105 of Title 27.

§§ 461-475. Repealed. 2009, No. 55, § 4, eff. June 1, 2009.

History

Former § 461, relating to interest of widow in real estate, was derived from V.S. 1947, § 3027; P.L. § 2951; 1933, No. 157 , § 2738; 1929, No. 46 , § 1; G.L. § 3401; 1917, No. 87 ; P.S. § 2921; 1896, No. 44 , § 1; V.S. § 2528; R.L. § 2215. G.S. 55, § 1; R.S. 51, § 1; 1821, p. 55; R. 1797, p. 225, § 32; R. 1787, p. 55.

Former § 462, relating to widow's interest in mortgaged lands, was derived from V.S. 1947, § 3028; P.L. § 2952; G.L. § 3402; P.S. § 2922; 1896, No. 44 , § 2; V.S. § 2529; R.L. § 2216. G.S. 55, § 2; R.S. 51, § 2.

Former § 463, relating to redemption; how set out, was derived from V.S. 1947, § 3029; 1947, No. 202 , § 3052; P.L. § 2953; G.L. § 3403; P.S. § 2923; 1896, No. 44 , § 3; V.S. § 2530; R.L. § 2217; G.S. 55, § 3; R.S. 51, § 3.

Former § 464, relating to when administrator to redeem; widow's rights, was derived from V.S. 1947, § 3030; P.L. § 2954; G.L. § 3404; P.S. § 2924; 1896, No. 44 , § 4; V.S. § 2531; R.L. 2218; G.S. 55, § 4; R.S. 51, § 4.

Former § 465, relating to widow's interest, how barred, was derived from V.S. 1947, § 3031; P.L. § 2955; G.L. § 3405; P.S. § 2925; 1896, No. 44 , § 5; V.S. § 2532; R.L. § 2219. 1864, No. 66 ; G.S. 55, §§ 5, 6; R.S. 51, §§ 5-7; 1829, No. 9 ; 1821, p. 56; 1819, p. 16; 1818 p. 77; 1799, p. 3. R. 1797, p. 225, § 32; R. 1787, p. 55.

Former § 466, relating to assignment of widow's interest, was derived from V.S. 1947, § 3032; P.L. § 2956; G.L. § 3406; P.S. § 2926; 1896, No. 44 , § 6; V.S. § 2533; R.L. § 2220. G.S. 55, § 7; R.S. 51, § 8; 1821, p. 56; R. 1797, p. 256, § 90; R. 1787, p. 56 and amended by 1985, No. 144 (Adj. Sess.), § 30.

Former § 467, relating to partition first, if estate held in common, was derived from V.S. 1947, § 3033; P.L. § 2957; G.L. § 3407; P.S. § 2927; 1896, No. 44 , § 7; V.S. § 2534; R.L. § 2221. G.S. 57, § 13; R.S. 53, § 11; 1821, p. 60.

Former § 468, relating to recording; effect, was derived from V.S. 1947, § 3034; P.L. § 2958; G.L. § 3408; P.S. § 2928; 1896, No. 44 , § 8; V.S. § 2535; R.L. § 2222. G.S. 55, § 8; R.S. 51, § 9; 1921, p. 56; R. 1797, p. 256, § 90; R. 1787, p. 56 and amended by 1971, No. 179 (Adj. Sess.), § 5; and 1985, No. 144 (Adj. Sess.), § 31.

Former § 469, relating to estate to be sold if indivisible, was derived from V.S. 1947, § 3035; P.L. § 2959; G.L. § 3409; P.S. § 2929; 1896, No. 44 , § 9; V.S. § 2536; R.L. § 2223. G.S. 55, § 9; R.S. 51, § 10; 1821, p. 56; R. 1797, p. 256, § 91 and amended by 1985, No. 144 (Adj. Sess.), § 32.

Former § 470, relating to widow may occupy until interest set out, was derived from V.S. 1947, § 3036; P.L. § 2960; G.L. § 3410; P.S. § 2930; 1896, No. 44 , § 10; V.S. § 2537; R.L. § 2224. G.S. 55, § 10; R.S. 51, § 11.

Former § 471, relating to reassignment of widow's interest, was derived from V.S. 1947, § 3037; P.L. § 2961; G.L. § 3411; P.S. § 2931; 1896, No. 44 , § 11; V.S. § 2538; R.L. § 2225. G.S. 55, § 11; R.S. 51, § 12.

Former § 472, relating to widow of insolvent; agreement with creditors, was derived from V.S. 1947, § 3038; 1947, No. 202 , § 3061; P.L. § 2962; G.L. § 3412; P.S. § 2932; 1896, No. 44 , § 12; V.S. § 2539; R.L. § 2226; G.S. 55, § 12; R.S. 51, § 13. 1821, p. 68; R. 1797, p. 254, § 88; R. 1787, p. 58.

Former § 473, relating to fraudulent conveyances to defeat widow's interest, was derived from V.S. 1947, § 3039; P.L. § 2963; G.L. § 3413; R.S. § 2933; 1896, No. 44 , § 14; V.S. § 2541; R.L. § 2228. G.S. 55, § 14.

Former § 474, relating to husband's interest in lieu of curtesy, was derived from V.S. 1947, § 3040; 1947, No. 202 , § 3063; P.L. § 2964; G.L. § 3414; 1917, No. 88 ; P.S. § 2934; 1900, No. 39 , § 1; 1896, No. 44 , § 15; V.S. § 2542; R.L. § 2229. G.S. 55, § 15; R.S. 51, § 15; 1824, p. 24; 1823, p. 19; 1821, p. 57; R. 1797, p. 237, § 61.

Former § 475, relating to waiver of provisions of wife's will, was derived from V.S. 1947, § 3041; P.L. § 2965; G.L. § 3415; 1910, No. 100 , §§ 1, 2; P.S. § 2935; V.S. § 2543; 1890, No. 34 , § 1.

Annotations From Former § 461

1. Nature of interest during marriage.

Interest of wife during coverture in husband's property is not a vested interest, but is such as to give her an equitable right of action to protect her against any conveyance thereof, made by him with fraudulent intent to deprive her of such rights therein, as, by statute, would accrue to her at his decease. Dunnett v. Shields, 97 Vt. 419, 123 A. 626 (1924).

2. Vesting of interest.

Widow's right to dower becomes a present vested estate on decease of husband, which does not depend on contingency of dower being assigned or set out. Town of Dummerston v. Town of Newfane, 37 Vt. 9 (1864).

3. Testamentary disposition of interest.

The surviving spouse's right of dower is of such paramount importance that it is regarded as a restraint upon the exercise of another fundamental right - that of testamentary disposition, and it is beyond dispute that any effort to will away such a right must fail. Budde v. Pierce, 135 Vt. 152, 375 A.2d 984 (1977).

Statutory rights of widow are homestead, statutory dower, and at least one-third of deceased husband's personal property and none can lawfully or effectually be willed away from her without her assent. In re O'Rourke's Estate, 106 Vt. 327, 175 A. 24 (1934).

4. Contract to devise real estate.

Where divorce decree required husband to make a will leaving his real estate to the minor children of the parties, and at time of his death, husband was remarried but had not yet complied with the provisions of the divorce decree, having made no testamentary disposition whatever of the subject real estate, even if divorce decree was a binding and valid contract to devise real estate, its specific enforcement could not affect the rights of the widow of a party to that contract from her statutory claims to a portion of the estate. Budde v. Pierce, 135 Vt. 152, 375 A.2d 984 (1977).

5. Conveyance to defraud wife.

One cannot hold property which he receives as a mere gratuity, or as heir, if the property was conveyed to him to defeat wife of deceased to her right to dower, but he will be held liable in chancery to account for property so received, and widow will be entitled to one-third part of such property. Jenny v. Jenny, 24 Vt. 324 (1852).

A conveyance by husband, shortly before his death, of all his property, both real and personal, to his children, without any valuable consideration, and with intent to defeat wife of her dower and her share of personal estate, securing at same time to himself possession, use and control of it during his life, is fraudulent against the claims of wife, and will be set aside. Thayer v. Thayer, 14 Vt. 107 (1842).

Where a person seized of lands for consideration of one dollar and for love and affection, executed a deed conveying lands to his brother, and afterwards delivered deed to a third person to be kept until after grantor's death, and then to be delivered to grantee, and grantor retained possession of lands during his life, and after death of grantor deed was delivered to grantee, such deed did not operate to convey lands so as to deprive widow of her dower therein. Ladd v. Ladd, 14 Vt. 185 (1842).

6. Ante-nuptial agreements.

When heirs of deceased husband's estate refused to pay annuity to widow, after it had been paid for several years, which annuity had been provided by an ante-nuptial agreement, and intended to be in lieu of the provisions of law, she was entitled to take a homestead and dower, the same as though no ante-nuptial agreement existed, the court never having decreed a distribution of the estate. Littel v. Dwinell, 57 Vt. 301 (1884).

While L, while insane, was married to S and continued insane till his death, leaving S surviving him, although their marriage could have been avoided by proceedings in supreme court, it was a marriage in fact and S was entitled to a distributive share in estate of L as his widow. Wiser v. Lockwood's Estate, 42 Vt. 720 (1870).

7. Effect of separation.

Though wife separated from husband by reason of family discord such separation was no forfeiture of her right of dower and her share of personal estate, though she had no justifiable cause of separation. Thayer v. Thayer, 14 Vt. 107 (1842).

8. Claims of creditors.

Widow's interest in lieu of dower is excluded from real estate which may be sold for payment of decedent's debts, such interest being preferred over claims of unsecured creditors. Blanchard v. Blanchard's Estate, 109 Vt. 454, 199 A. 233 (1938).

Argument that, because provisions made for widow from her husband's estate have been increased and because the legal rights of married women have been enlarged and their economic and social status improved, dower and its modern substitutes are no longer entitled to preference over unsecured creditors, is proper for consideration of legislature but may not be considered by courts unless statutes governing this matter are ambiguous. Blanchard v. Blanchard's Estate, 109 Vt. 454, 199 A. 233 (1938).

Annotations From Former § 465

1. Generally.

Exclusive means by which dower interest retained by surviving spouse may be barred is explicitly set out in this section. Budde v. Pierce, 135 Vt. 152, 375 A.2d 984 (1977).

2. Construction with other laws.

Language of subdivision (2) of this section, while clearly conferring upon probate court jurisdiction to determine whether bequest in will to his widow was intended to be in lieu of her statutory right to one-third in value of real estate of which he died seized in his own right, is not specific grant of exclusive power and does not preclude court of chancery from construing will under authority contained in section 117 of this title, which was later enactment. O'Rourke v. Cleary, 104 Vt. 312, 158 A. 673 (1932).

3. Provisions in will.

Interest of widow in real estate of her husband is not one which is a matter of right but may be barred where husband by his will has made provision for her which, in opinion of probate court, was intended to be in lieu of such interest in such estate and it is only by a decree of probate court that widow would become entitled to this real estate. In re Estate of Sharon, 121 Vt. 322, 157 A.2d 475 (1960).

Devise by husband does not extinguish widow's right to homestead and dower, unless it clearly appears that such was the intention of testator. O'Rourke v. Cleary, 105 Vt. 85, 163 A. 583 (1933).

Provisions of will wherein specific sum was bequeathed to testator's widow in addition to real estate and household goods, furnishings, and contents of house in certain city, did not show intention on part of testator that bequest should be in lieu of plaintiff's statutory rights as surviving widow. O'Rourke v. Cleary, 105 Vt. 85, 163 A. 583 (1933).

4. Ante-nuptial agreements.

This section, providing in what cases widow may be barred of dower, relates to jointures or pecuniary provisions which are to take effect after decease of husband and between which and the provisions made for her by the statute an election may then be made; but it does not apply to a provision made for and received by her, completely, during the life of her husband, under an ante-nuptial contract, perfectly fair and well understood, that it shall be in lieu of every claim in her behalf against his estate. Chaffee v. Chaffee, 70 Vt. 231, 40 A. 247 (1897).

Where widow accepted one yearly installment under ante-nuptial contract, from the executor, after her husband's decease, this of itself was an election to take under the contract. Chaffee v. Chaffee, 70 Vt. 231, 40 A. 247 (1897).

When heirs of deceased husband's estate refused to pay an annuity to a widow, after it had been paid for several years, which annuity had been provided by an ante-nuptial agreement, and intended to be in lieu of the provisions of law, she was entitled to take under statute a homestead and dower, as if no ante-nuptial agreement existed, the court never having decreed a distribution of the estate, and the rights of the widow could be enforced by bill in equity, not only against heirs, but their grantees affected by notice of the widow's claim. Little v. Dwinnell, 57 Vt. 301 (1884).

Where plaintiff did not elect to waive provision made for her by an ante-nuptial agreement, but, although she was induced by the fraud of the only son of intestate, accepted and received the same in full of all claim against the estate and retained it without offering to restore it to the estate, plaintiff was barred of dower and homestead. Hathaway v. Hathaway's Estate, 46 Vt. 234 (1873).

5. Waiver.

Under subdivision (3) of this section, the application for extension of time to file the waiver need not be made within the eight months, but probate court may permit such waiver at any time before the settlement of the estate is closed. In re Estate of Woolley, 96 Vt. 60, 117 A. 370 (1922).

Probate court, on application of widow made nearly 4 1/2 years after will was proved, had authority, in its discretion, to allow a further time in which to waive provisions of will; and decree granting such extension, unappealed from, and decree, also unappealed from, dismissing a petition subsequently brought to set aside the order allowing additional time and to expunge the waiver filed by widow in pursuance thereof from records, were conclusive and not open to attack in an appeal from decree to widow of her distributive share of estate. In re Estate of Woolley, 96 Vt. 60, 117 A. 370 (1922).

Widow's waiver contemplated by this section is of some provision the benefit of which she is to get upon or after her husband's death. Sawyer v. Churchill, 77 Vt. 273, 59 A. 1014 (1905).

6. Insolvent estate.

There is no statutory provision for barring widow's third interest in lieu of dower in her husband's real estate by reason of fact that his estate is insolvent or that it is necessary to use all or some portion of such dower interest to prevent insolvency. Blanchard v. Blanchard's Estate, 109 Vt. 454, 199 A. 233 (1938).

Decedent's widow, who had waived provisions made for her in her husband's will, was entitled in her account as executrix of her husband's estate to credit for one-third of avails of sale of real estate as her statutory interest therein, notwithstanding that estate was insolvent. Blanchard v. Blanchard's Estate, 109 Vt. 454, 199 A. 233 (1938).

Cited. Mann v. Mann's Estate, 53 Vt. 48 (1880); In re Walworth's Estate, 85 Vt. 322, 82 A. 7 (1912).

Annotations From Former § 466

1. Commissioners.

After probate court had appointed commissioners for setting out of homestead and dower, court of chancery would not interfere upon ground that commissioners were appointed without notice, and were unfit persons to act, and that homestead and dower could not be severed without great damage to the remaining premises. Brown v. Brown, 66 Vt. 81, 28 A. 666 (1894).

It was duty of probate court, in his commission to committee to set out widow's dower, particularly to describe all the real estate of which the husband died seized in his own right, and it was duty of committee to view premises and appraise the same. Kendrick v. Harris, 1 Aik. 273 (1826).

An objection to order appointing committee to set off dower could not be taken advantage of upon an appeal from decree accepting the report of such committee. Kendrick v. Harris, 1 Aik. 273 (1826).

Annotations From Former § 472

1. Construction.

This section does not mean that claims of creditors are superior to widow's interest in lieu of dower, but only that both widow and creditors have interests in decedent's real estate and are authorized to adjust their respective interests by agreement, subject to approval of probate court. Blanchard v. Blanchard's Estate, 109 Vt. 454, 199 A. 233 (1938).

Annotations From Former § 474

1. Election to take under will.

Statutory curtesy is barred when the widower accepts the provisions made for him by last will and testament of his wife. In re Will of Prudenzano, 116 Vt. 55, 68 A.2d 704 (1949).

2. Sale of real estate.

The one-third interest to which husband is entitled under this section in his deceased wife's estate whereof they were seized in her right in fee-simple, having been given in lieu of curtesy, can be sold under license from probate court for payment of her debts and expenses of administering her estate, as curtesy could have been. In re Bidwood's Estate, 86 Vt. 295, 85 A. 6 (1912).

Right to occupy as tenant by the curtesy was subject to be defeated by necessity of a sale of real estate to pay wife's debts. Bennett v. Camp, 54 Vt. 36 (1882).

Annotations From Former § 475

1. Construction.

Word "as" in section means "in the same manner in which." In re Peck's Estate, 80 Vt. 469, 68 A. 433 (1908).

2. Procedure.

When a wife dies testate leaving no issue, her surviving husband can waive the provisions of her will in his favor only by seasonably and in writing notifying the probate court of his intention to do so. In re Baker's Estate, 81 Vt. 505, 71 A. 190 (1908).

There was no valid waiver by a husband of the provisions contained in his wife's will when he, by his attorney, notified the probate court of his intention to waive said provisions, and later signed a formal written waiver thereof and sent it to his attorney to be filed in probate court; but the attorney through mistake failed so to file it and mislaid or lost it. In re Baker's Estate, 81 Vt. 505, 71 A. 190 (1908).

Election may be by matter in pais as well as by matter of record, but it can be only by plain and unequivocal acts, with full knowledge of all the circumstances, and of the party's rights, and with the intent to elect. In re Peck's Estate, 80 Vt. 469, 68 A. 433 (1908).

3. Extension of time.

It was within discretion of probate court to grant extension of time to waive provisions of will. In re Peck's Estate, 80 Vt. 469, 68 A. 433 (1908).

4. Waiver after probate of will.

Since section 1 of this title gives every married woman of age and sound mind power to dispose of her real and personal estate, regardless of her husband's consent, neither validity of her will nor its probate depends on such consent being shown, and, hence, surviving husband cannot by probate of his wife's will be estopped subsequently to elect to waive its provisions and take under section 551 of this title. In re Peck's Estate, 80 Vt. 469, 68 A. 433 (1908).

Right of surviving husband to waive provisions of wife's will was not affected by either his failure to object to or appeal from probate thereof; and any question as to whether he shall take under will, or under section 551 of this title in consequence of his waiver, was involved in decree of distribution and should be determined in connection therewith. In re Peck's Estate, 80 Vt. 469, 68 A. 433 (1908).

CHAPTER 45. DESCENT, OMITTED ISSUE AND LAPSED LEGACIES

Sec.

§§ 551-559. Repealed. 2009, No. 55, § 4, eff. June 1, 2009.

History

Former § 551, relating to general rules of descent, was derived from 1955, No. 39 ; V.S. 1947, § 3042; 1947, No. 202 , § 3065. P.L. § 2966; 1929, No. 46 , § 2; 1923, No. 55 , § 1. 1919, No. 86 , § 1; G.L. § 3416; 1912, No. 105 ; 1908, No. 75 ; P.S. § 2936; 1896, No. 44 , § 16; 1896, No. 45 , § 1; V.S. § 2544; 1894, No. 56 ; 1892, No. 49 ; 1890, No. 34 ; 1888, No. 77 ; R.L. § 2230; 1870, No. 30 ; 1870, No. 31 , § 1; G.S. 49, § 5; G.S. 55, § 6; G.S. 56, §§ 1, 18; 1850, No. 15 ; R.S. 45, § 5; R.S. 51, §§ 6, 7. R.S. 52, §§ 1, 14. 1829, No. 9 ; 1826, No. 19 ; 1824, p. 24; 1821, pp. 39, 57; R. 1797, p. 212, § 8; R. 1797, p. 223, § 27; R. 1797, p. 224, §§ 29, 30; R. 1787, p. 54 and amended by 1969, No. 255 (Adj. Sess.), § 1 and 1971, No. 165 (Adj. Sess.), § 1.

Former § 552, relating to degrees, how computed; kindred of half-blood, was derived from V.S. 1947, § 3043; P.L. § 2967; G.L. § 3417; P.S. § 2937; V.S. § 2545; R.L. § 2231; G.S. 56, § 2; R.S. 52, § 2.

Former § 553, relating to illegitimate children; inheritance by and from, was derived from V.S. 1947, § 3044; P.L. § 2968; 1933, No. 157 , § 2755; G.L. § 3418; P.S. § 2938; V.S. § 2547; R.L. § 2232; 1867, No. 38 ; G.S. 56, § 4; R.S. 52, § 4; 1821, p. 58; R. 1797, p. 223, § 28 and amended by 1967, No. 350 (Adj. Sess.), § 1 and 1983, No. 231 (Adj. Sess.), § 1a.

Former § 554, relating to children legitimatized by parents' marriage, was derived from V.S. 1947, § 3045; P.L. § 2969; G.L. § 3419; P.S. § 2939; V.S. § 2548; R.L. § 2233; G.S. 56, § 5; R.S. 52, § 5; 1821, p. 58; R. 1797, p. 223, § 28.

Former § 555, relating to share of after-born child, was derived from V.S. 1947, § 3061; 1947, No. 202 , § 3084; P.L. § 2976; G.L. § 3426; P.S. § 2946; V.S. § 2555; R.L. § 2241; G.S. 49, § 25; R.S. 45, § 25; 1821, p. 38; R. 1797, p. 211, § 6.

Former § 556, relating to share of child or issue of child omitted from will, was derived from V.S. 1947, § 3062; P.L. § 2977; G.L. § 3427; P.S. § 2947; V.S. § 2556; R.L. § 2242; G.S. 49, § 26; R.S. 45, § 26.

Former § 557, relating to omitted or after-born child, from what part of estate share taken, was derived from V.S. 1947, § 3063; P.L. § 2978; G.L. § 3428; P.S. § 2848; V.S. § 2557; R.L. § 2243; G.S. 49, § 27; R.S. 45, § 27; 1821, p. 39; R. 1797, p. 211, § 6.

Former § 558, relating to devisee dying before testator; issue to take, was derived from V.S. 1947, § 3064; 1947, No. 202 , § 3087; P.L. § 2979; G.L. § 3429; P.S. § 2949; V.S. § 2558; R.L. § 2244; G.S. 49, § 28; R.S. 45, § 28.

Former § 559, relating to person absent and unheard of; share of, was derived from V.S. 1947, § 3065; P.L. § 2980; G.L. § 3430; P.S. § 2950; R. 1906, § 2833; V.S. § 2559; R.L. § 2245. 1876, No. 82 , § 1 and amended by 1985, No. 144 (Adj. Sess.), § 33.

Annotations From Former § 551

1. Definitions.

"Descent" involves the devolution or taking by succession of intestate property by operation of law. In re Estate of Copeland, 123 Vt. 32, 179 A.2d 475 (1962).

2. Right to inherit.

Right to succeed to the property of an ancestor is not a natural right, but a gift of the law. In re Martin's Estate, 96 Vt. 455, 120 A. 862 (1923).

3. Real and personal estate.

When the wife dies without issue and without representatives of issue, the husband takes the whole of her estate up to the sum mentioned in this section, and one-half of the remainder, though consisting wholly of real estate or wholly of personal estate, or partly of one and partly of the other. Harrington v. Harrington's Estate, 53 Vt. 649 (1881).

4. Adopted children and their representatives.

In subdivision (1) of this section, providing that an intestate's estate shall descend to his "children," "or the legal representatives of deceased children," and in subdivision (2), providing that if the intestate was married, "and leaves no issue," surviving husband or wife shall take as designated, words "children" and "issue" are not limited to children born in lawful wedlock, but include adopted children, and word "issue" includes the legal representatives of such deceased children. In re Walworth's Estate, 85 Vt. 322, 82 A. 7 (1912).

Where an intestate left a widow, but no issue of his body, and before his marriage with her he adopted claimant's mother, who predeceased him, leaving claimant, who was her legitimate child, surviving her, and intestate's widow, at time of their intermarriage, knew that he had adopted claimant's mother, but neither assented nor objected thereto, claimant was entitled by representation to share in intestate's estate, not limited to the heirs of his body, to same extent as if claimant were intestate's real grandson, it being a case where an intestate left "legal representatives of deceased children," within the meaning of subdivision (1) of this section. In re Walworth's Estate, 85 Vt. 322, 82 A. 7 (1912).

5. Grandchildren.

A bequest "per stirpes and not per capita" serves to rebut statutory "per capita" distribution at the level of grandchildren. In re Estate of White, 127 Vt. 28, 238 A.2d 791 (1968).

Under subdivision (1) of this section, grandchildren who alone survive the ancestor take equally and not by representation, the clause providing for representation applying only when inequality of relationship exists. In re Martin's Estate, 96 Vt. 455, 120 A. 862 (1923).

6. Waiver of will by surviving spouse.

The share of an estate which the widow elects to take by her waiver of the will is the only portion of the estate not "devised or bequeathed" upon which this section can operate. In re Estate of Copeland, 123 Vt. 32, 179 A.2d 475 (1962).

Although the rights of the widow are favored in the law, they do not allow her waiver to reach beyond the provisions of the will for her benefit and destroy otherwise valid testamentary dispositions insofar as the assets of the estate are sufficient to fulfill her statutory rights and the distributions under the will. In re Estate of Copeland, 123 Vt. 32, 179 A.2d 475 (1962).

Where a will provides for a trust estate for life for the widow, followed by a remainder over, the widow, by waiving the provisions of the will, accelerates the estate in remainder into present enjoyment. In re Estate of Copeland, 123 Vt. 32, 179 A.2d 475 (1962).

Decedent's widow, who had waived provisions made for her in her husband's will, was entitled in her account as executrix of her husband's estate to credit for one-third of avails of sale of real estate as her statutory interest therein, notwithstanding that estate was insolvent. Blanchard v. Blanchard's Estate, 109 Vt. 454, 199 A. 233 (1938).

7. Curtesy.

Statutory curtesy may be barred under this section where there is no issue and the widower either elects to take one-third of the deceased wife's real estate or waives the provisions of her will and takes the sum specified in subdivision (2) and one-half the remainder. In re will of Prudenzano, 116 Vt. 55, 68 A.2d 704 (1949).

8. Brothers and sisters and their representatives.

Where intestate died leaving no kindred in the direct line, either ascending or descending, but left a sister, some nephews and nieces and claimant grandchildren of a sister who deceased during his lifetime and whose mother also deceased during his lifetime, such grandchildren of a sister take by representation through their mother and maternal grandmother the share the mother would have received had she survived him. Gaines v. Estate of Strong, 40 Vt. 354 (1867).

If intestate leaves no widow, issue, father, mother, brother, or sister living, but leaves surviving him children of his deceased brothers and sisters, and also grandchildren of deceased brothers and sisters, whose parents are also dead, his estate must be divided equally among all the children, who are living, of his deceased brothers and sisters, to the exclusion of the grandchildren, the case coming within subdivision (5) of this section. Hatch v. Hatch, 21 Vt. 450 (1849).

9. Cousins and their representatives.

Under subdivisions (4) and (5) of this section, children of deceased first cousins are precluded from sharing with surviving first cousins in an intestate estate. In re Estate of Valiquette, 122 Vt. 362, 173 A.2d 839 (1961).

*10. Killing decedent as bar to inheritance.

* Constructive trust.

A spouse, heir or legatee, who inherits legal title to property from the estate of a decedent whom such person has voluntarily slain, is chargeable as a constructive trustee of such property for the benefit of the victim's other heirs or next of kin. In re Estate of Mahoney, 126 Vt. 31, 220 A.2d 475 (1966).

*11. Classification of crime.

A constructive trust will be imposed with respect to property inherited by a slayer from the estate of his victim if the killing was intentional, whether characterized as murder or manslaughter. In re Estate of Mahoney, 126 Vt. 31, 220 A.2d 475 (1966).

*12. Exceptions.

A slayer who inherits from his victim is not chargeable as a constructive trustee if the slayer was insane at the time or had a vested interest in the property. In re Estate of Mahoney, 126 Vt. 31, 220 A.2d 475 (1966).

A constructive trust will not be imposed with respect to property inherited by a slayer from the estate of his victim if the killing was involuntary. In re Estate of Mahoney, 126 Vt. 31, 220 A.2d 475 (1966).

*13. Proof.

Fact that the slayer has been convicted of a voluntary killing in a criminal case does not dispense with the necessity of proving that the killing was voluntary in an equitable proceeding to charge the slayer as constructive trustee with respect to property inherited by him from his victim. In re Estate of Mahoney, 126 Vt. 31, 220 A.2d 475 (1966).

Cited. In re Peck's Estate, 80 Vt. 469, 68 A. 433 (1908); Mobbs v. Central Vermont Railway, 150 Vt. 311, 553 A.2d 1092 (1988); In re Estate of Neil, 152 Vt. 124, 565 A.2d 1309 (1989); In re Raymond Estate, 161 Vt. 544, 641 A.2d 1342 (1994).

Annotations From Former § 552

Cited. Hatch v. Hatch, 21 Vt. 450 (1849); In re Raymond Estate, 161 Vt. 544, 641 A.2d 1342 (1994).

Annotations From Former § 553

1. Inheritance as though legitimate.

Word "through" is an important addition to language of earlier statutes, and, taken with words "as if born in lawful wedlock," demonstrates a legislative intent that an illegitimate child should inherit through the mother as though legitimate. 1954-56 Op. Atty. Gen. 341.

2. Inheritance between illegitimate children.

One illegitimate child can inherit to another illegitimate child of the same mother. Town of Burlington v. Fosby, 6 Vt. 83 (1834).

3. Inheritance between legitimate and illegitimate children.

Illegitimate children do not inherit from legitimate children of same mother. Bacon v. McBride, 32 Vt. 585 (1860).

4. Limitations on parentage action .

The effective window for the filing of a parentage action and motion for genetic testing by a nonmarital child is 21 years from the child's birth. In re Estate of Murcury, 177 Vt. 606, 868 A.2d 680 (mem.) (December 13, 2004).

Annotations From Former § 554

1. Consequences of legitimation.

If parents of an illegitimate child intermarry, and recognize and treat such child as their own, it will render child legitimate, as if born in lawful wedlock, and child will take settlement of father, as one of the legal consequences resulting from such act of legitimation. Town of Rockingham v. Town of Mount Holly, 26 Vt. 653 (1854).

Annotations From Former § 556

1. Purpose.

Purpose of this section is to guard against inadvertent and unintentional omission of children and their issue from the will of a parent or grandparent. In re Dugan's Estate, 108 Vt. 430, 188 A. 887 (1937).

2. Effect on will.

Child claiming rights granted by this section does not seek to defeat or amend will itself or to impeach it in any way, but to have established a right under statute unaffected by will. In re Dugan's Estate, 108 Vt. 430, 188 A. 887 (1937).

3. Burden of proof.

Child claiming rights granted by this section has burden of proving that he was left out of will and that omission was result of accident or mistake. In re Dugan's Estate, 108 Vt. 430, 188 A. 887 (1937).

4. Evidence.

Relevant parol evidence is admissible on issue as to whether omission of child from will occurred through accident or mistake. In re Dugan's Estate, 108 Vt. 430, 188 A. 887 (1937).

Annotations From Former § 558

1. Devisee or legatee dying without issue.

Where son deceased before testator, leaving no children, legacy to him lapsed. Colburn v. Hadley, 46 Vt. 71 (1873).

2. Surviving issue.

Where will provided that if sister survived testator the residue was devised to the sister and to brother in equal shares, but if sister did not survive testator then the whole residue was devised to the brother, with the recommendation, but not a direction, that in such case brother divide at least half of the devise among his then living children and the descendants of his deceased children, and sister predeceased testator leaving no surviving issue and brother predeceased testator leaving children and grandchildren of a deceased child, the residue was improperly treated as passing by intestacy, and supreme court would order that it be distributed under this section. In re Estate of Carr, 139 Vt. 111, 422 A.2d 943 (1980).

3. Disposition required by will.

Anti-lapse provision of this section did not apply where residue was left to named brothers and sisters "share and share alike," the share of any brother or sister predeceasing testator to be "divided equally among the survivors thereof," for a different disposition, to the surviving brothers and sisters, was thereby made. In re Miner Estate, 129 Vt. 484, 282 A.2d 827 (1971).

Annotations From Former § 559

1. Liability of assignees.

Where probate court distributed estate, one-half to one brother, and the other half to the defendants, the assignees of the other brother, defendants are liable under section, since it provides that if absent person proves to be alive, such person may recover from anyone receiving under order of the court. Lenehan v. Spaulding, 57 Vt. 115 (1884).

2. Evidence.

Question being whether a son who disappeared and was never subsequently heard from, died before his father, testimony of living members of family as to general reputation in family as to son's death, not predicated upon declarations of any deceased member of family, was inadmissible. In re Hurlburt's Estate, 68 Vt. 366, 35 A. 77 (1895).

CHAPTER 47. UNIFORM SIMULTANEOUS DEATH ACT

Sec.

History

Short title. V.S. 1947, § 3053, derived from 1941, No. 41 , § 8, provided that this chapter may be cited as the Uniform Simultaneous Death Act.

Severability of enactment. V.S. 1947, § 3054, derived from 1941, No. 41 , § 10, contained a separability provision applicable to this chapter.

§ 621. No sufficient evidence of survivorship.

Where the title to property or the devolution thereof depends upon priority of death and there is not sufficient evidence that the persons have died otherwise than simultaneously, the property of each person shall be disposed of as if he had survived, except as provided otherwise in this chapter.

History

Source. V.S. 1947, § 3046. 1941, No. 41 , § 1.

§ 622. Beneficiaries.

Where two or more beneficiaries are designated to take successively by reason of survivorship under another person's disposition of property and there is not sufficient evidence that these beneficiaries have died otherwise than simultaneously, the property thus disposed of shall be divided into as many equal portions as there are successive beneficiaries and these portions shall be distributed respectively to those who would have taken in the event that each designated beneficiary had survived.

History

Source. V.S. 1947, § 3047. 1941, No. 41 , § 2.

§ 623. Joint tenants.

Where there is not sufficient evidence that two joint tenants or tenants by the entirety have died otherwise than simultaneously, the property so held shall be distributed one-half as if one had survived and one-half as if the other had survived. If there are more than two joint tenants and all of them have so died, the property thus distributed shall be in the proportion that one bears to the whole number of joint tenants.

History

Source. V.S. 1947, § 3048. 1941, No. 41 , § 3.

§ 624. Insurance policy.

Where the insured and the beneficiary in a policy of life or accident insurance have died and there is not sufficient evidence that they have died otherwise than simultaneously, the proceeds of the policy shall be distributed as if the insured had survived the beneficiary.

History

Source. V.S. 1947, § 3049. 1941, No. 41 , § 4.

§ 625. Construction.

This chapter shall not apply to the distribution of the property of a person who has died before March 21, 1941.

History

Source. V.S. 1947, § 3050. 1941, No. 41 , § 5.

§ 626. Application where provision made for simultaneous death.

This chapter shall not apply in the case of wills, living trusts, deeds, or contracts of insurance wherein provision has been made for distribution of property different from the provisions of this chapter.

History

Source. V.S. 1947, § 3051. 1941, No. 41 , § 6.

§ 627. Interpretation to effectuate purpose.

This chapter shall be so construed and interpreted as to effectuate its general purpose to make uniform the law in those states that enact it.

History

Source. V.S. 1947, § 3052. 1941, No. 41 , § 7.

CHAPTER 49. ESCHEATS

Sec.

History

Applicability of 2017 (Adj. Sess.) amendment. 2017, No. 195 (Adj. Sess.), § 19 provides: "This act [which amended this chapter] shall take effect on July 1, 2018 and shall apply to wills executed or offered for admission on or after that date."

§ 681. Persons dying testate or intestate without heirs or known legatees.

When a person dies testate or intestate, seised of real or personal property in this State, leaving no heir nor person entitled to the same, the selectboard members of the town where the deceased last resided, if an inhabitant of the State, or of the town in which estate lies, if the absent person resided out of the State, may file a petition, on behalf of the town, with the Probate Division of the Superior Court for a hearing in accordance with the Rules of Probate Procedure.

Amended 1959, No. 38 , § 1, eff. March 12, 1959; 1985, No. 144 (Adj. Sess.), § 34; 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011.

History

Source. V.S. 1947, § 3055. P.L. § 2970. G.L. § 3420. P.S. § 2940. V.S. § 2549. R.L. § 2235. G.S. 58, § 1. R.S. 54, § 1. 1821, p. 61. R. 1797, p. 243, § 73.

Amendments--2009 (Adj. Sess.) Substituted "probate division of the superior court" for "probate court."

Amendments--1985 (Adj. Sess.). Deleted "procedure" following "legatees" in the section heading and deleted "he was" preceding "an inhabitant" and "he had" preceding "estate lies, if" and substituted "the absent person" for "he" thereafter and "for a hearing in accordance with the rules of probate procedure" for "of the same district for an inquisition in the premises" following "court" and made other minor stylistic changes in the text of the section.

Amendments--1959. Inserted "testate or" preceding "intestate without heirs" and "or known legatees" thereafter in the section heading and inserted "testate or" preceding "intestate" in the first sentence.

Cross References

Cross references. Commencement of probate proceedings generally, see Rule 3, Vermont Rules of Probate Procedure.

Hearings, see Rule 40, Vermont Rules of Probate Procedure.

§ 682. Repealed. 1985, No. 144 (Adj. Sess.), § 163.

History

Former § 682, relating to notice, was derived from V.S. 1947, § 3056; P.L. § 2971; G.L. § 3421; P.S. § 2941; V.S. § 2550; R.L. § 2236; G.S. 58, § 2; R.S. 54, § 2; 1821, p. 61; R. 1797, p. 243, § 73.

§ 683. Escheat, proceeds from sale.

If sufficient cause is not shown to the contrary, at the time appointed for that purpose, the court shall order and decree that the estate of the deceased in the State, after the payment of just debts and charges, shall escheat. The court shall assign the personal estate to the town where the deceased was last an inhabitant in the State and the real estate to the towns in which the same is situated. If he or she were never an inhabitant of the State, the whole estate shall be assigned to the towns where the same is located. The estate shall be for the use of schools in the towns respectively and shall be managed and disposed of like other property appropriated to the use of the town school districts. Any property decreed to a town by virtue of this chapter or subsequently conveyed to an incorporated school district within the town for the use of its schools may be sold without restriction, provided the proceeds shall be expended for the use of the schools of the town.

Amended 2017, No. 195 (Adj. Sess.), § 4.

History

Source. V.S. 1947, § 3057. 1945, No. 36 , § 1. P.L. § 2972. 1933, No. 157 , § 2759. G.L. § 3422. P.S. § 2942. V.S. § 2551. R.L. § 2237. G.S. 58, § 3. R.S. 54, § 3. 1821, p. 61. R. 1797, p. 223, § 27. R. 1797, p. 243, § 73.

Amendments--2017 (Adj. Sess.). Substituted "the" for "such" throughout section.

ANNOTATIONS

1. Use of funds.

Escheated funds should be turned over to the selectmen of a town and managed as provided in statutes governing real and personal estate appropriated to the use of the schools. 1940-42 Op. Atty. Gen. 149.

Cited. In re Estate of Gillin, 172 Vt. 546, 773 A.2d 270 (2001).

§ 684. Rights of heir subsequently appearing.

If a devisee, legatee, heir, widow, or other person, entitled to some portion or all of an estate, appears within 17 years from the date of the decree and files a claim with the Probate Division of the Superior Court that made the decree, and establishes the claim to the estate, he or she shall have possession of the same to the extent of the claim, or, if sold, the town shall be accountable to him or her for the avails, after deducting reasonable charges for the care of the estate. If the claim is not made within the time mentioned, it shall be barred.

Amended 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011; 2017, No. 195 (Adj. Sess.), § 4.

History

Source. V.S. 1947, § 3058. P.L. § 2973. G.L. § 3423. P.S. § 2943. V.S. § 2552. R.L. § 2238. G.S. 58, § 4. R.S. 54, § 4. 1821, p. 63. R. 1797, p. 243, §§ 73, 74.

Amendments--2017 (Adj. Sess.). Section amended generally.

Amendments--2009 (Adj. Sess.) Substituted "probate division of the superior court"' for "probate court."

ANNOTATIONS

1. Property taxes .

Where heirs appeared and timely filed a claim to property taken by escheat, town could not retroactively charge taxes on the property and recoup its expenses. In re Estate of Gillin, 172 Vt. 546, 773 A.2d 270 (2001).

PART 3 Administration and Settlement of Decedents' Estates

CHAPTER 61. EXECUTORS AND ADMINISTRATORS

SUBCHAPTER 1. GENERAL PROVISIONS

SUBCHAPTER 2. SPECIAL ADMINISTRATORS

History

Applicability of 2017 (Adj. Sess.) amendment. 2017, No. 195 (Adj. Sess.), § 19 provides: "This act [which amended this chapter] shall take effect on July 1, 2018 and shall apply to wills executed or offered for admission on or after that date."

Subchapter 1. General Provisions

§ 901. Repealed. 1985, No. 144 (Adj. Sess.), § 163.

History

Former § 901, relating to definition of executor, was derived from V.S. 1947, § 2846; P.L. § 2773; G.L. § 3229; P.S. § 2756; V.S. § 2370; R.L. § 2062; G.S. 49, § 38; R.S. 45, § 38.

§ 902. Will allowed; letters to executor.

When a will has been allowed, the Probate Division of the Superior Court shall issue letters of administration to the person named executor if the person accepts appointment and gives any required bond.

Amended 1985, No. 144 (Adj. Sess.), § 35; 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011; 2017, No. 195 (Adj. Sess.), § 5.

History

Source. V.S. 1947, § 2847. P.L. § 2774. G.L. § 3230. P.S. § 2757. V.S. § 2371. R.L. § 2063. G.S. 50, § 1. R.S. 46, § 1.

Amendments--2017 (Adj. Sess.). Section amended generally.

Amendments--2009 (Adj. Sess.) Substituted "probate division of the superior court" for "probate court."

Amendments--1985 (Adj. Sess.). Deleted "proved" following "Will" in the section heading and deleted "proved and" preceding "allowed" and substituted "the person" for "he" preceding "accepts" in the text of the section.

Cross References

Cross references. Amount and conditions of bond, see § 906 of this title.

Appointment of special administrator, see §§ 961 and 962 of this title.

Discharge of executor, see § 2107 of this title.

Minor named as executor in will, see § 910 of this title.

Probate bonds, generally, see § 2101 et seq. of this title.

ANNOTATIONS

Cited. Martel v. Stafford, 157 Vt. 604, 603 A.2d 345 (1991).

§ 903. Administration; to whom granted.

If an executor is not named in the will, or if a person dies intestate, appointments to administer the estate may be made in the following manner:

  1. To the surviving spouse or next of kin, or both, or the person nominated by the surviving spouse or next of kin.
  2. If the surviving spouse or next of kin or the person nominated by them is unsuitable, or if the surviving spouse or the next of kin does not within a reasonable period of time after the death of the person apply for letters of administration or nominate another person to whom letters of administration may be granted, the court may grant letters of administration to one or more of the principal creditors, if competent and willing to serve.
  3. If there is not a creditor who is competent and willing to serve, letters of administration may be issued to another person appointed by the Probate Division of the Superior Court in its discretion.
  4. If the appointment is to enable a quiet title action or another action to clear title to lands, the court may appoint a suitable person as the administrator for that purpose upon application of the reputed owner of the land formerly owned by the decedent.

    Amended 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011; 2017, No. 195 (Adj. Sess.), § 5.

History

Source. 1953, No. 252 , § 1. V.S. 1947, § 2848. P.L. § 2775. 1919, No. 83 . G.L. § 3231. P.S. § 2758. V.S. § 2372. R.L. § 2064. G.S. 51, § 3. R.S. 47, § 3. 1821, p. 40. R. 1797, p. 220, § 25. R. 1787, p. 53.

Amendments--2017 (Adj. Sess.). Section amended generally.

Amendments--2009 (Adj. Sess.) Subdiv. (3): Substituted "probate division of the superior court" for "probate court."

Cross References

Cross references. Appointment of special administrator, see §§ 961 and 962 of this title.

Discharge of administrator, see § 2107 of this title.

Revocation of letters of administration when will discovered, see §§ 924-926 of this title.

ANNOTATIONS

Analysis

1. Conflict of interest.

Beneficiaries of an estate are entitled to have a person appointed administrator who will administer estate fairly and impartially; no person should be so appointed whose personal interests conflict with and are adverse to those of estate. In re Estate of Watkins, 114 Vt. 109, 41 A.2d 180 (1944).

2. Relation back of appointment.

Appointment of administratrix relates back to death of intestate. Firestone Tire & Rubber Co. v. Hart, 104 Vt. 100, 158 A. 90 (1932).

3. Corporations.

Corporation organized under the general laws may not properly act as executor or administrator. 1946-48 Op. Atty. Gen. 267.

4. Next of kin.

"Next of kin" carries the same meaning in the statute regarding administration of an estate as it does in the wrongful death statute and in the laws of descent. Thus, because under the laws of descent, a decedent's minor child would inherit everything, she was the next of kin for purposes of the administration statute. In re Estate of Lamore, 187 Vt. 571, 989 A.2d 486 (mem.) (2009).

It is the rule at common law that the guardian of an infant who would otherwise be entitled to administration of an estate was entitled to administer the estate as a matter of right; the common law rule addresses an issue that the statute dealing with administration of estates simply fails to address, and the rule is not inconsistent with the statute. Therefore, the common law rule applies and can be used to interpret the statute. In re Estate of Lamore, 187 Vt. 571, 989 A.2d 486 (mem.) (2009).

5. Particular cases.

Unmarried mother of a decedent's four-year-old child was properly appointed his administrator. The child was the decedent's "next of kin" under the administration statute, and under the common law, the mother, the child's guardian, stepped into the child's shoes and had the right to be appointed administrator provided that she was suitable; the mother was suitable, as her interests were directly aligned with the interests of the estate in that both sought to maximize the proceeds that could be obtained for the child in any ensuing wrongful death action. In re Estate of Lamore, 187 Vt. 571, 989 A.2d 486 (mem.) (2009).

Cited. Martel v. Stafford, 157 Vt. 604, 603 A.2d 345 (1991).

§ 904. Nonresident executor or administrator.

  1. In all cases where the principal administration is in this State, the Probate Division of the Superior Court shall appoint an executor or administrator who is not domiciled in this State only at the discretion of the court.
  2. Any nonresident estate fiduciary shall forthwith designate in writing a resident of this State who accepts appointment as the resident agent of the nonresident estate fiduciary and agrees to accept service of legal process and other communications on behalf of the executor or administrator. The appointment and acceptance shall be filed with the court. Service of legal process against the nonresident executor or administrator may be accomplished by serving the resident agent.

    Amended 1959, No. 262 , § 30, eff. June 11, 1959; 1985, No. 144 (Adj. Sess.), § 36; 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011; 2017, No. 195 (Adj. Sess.), § 5.

History

Source. 1953, No. 252 , § 2. V.S. 1947, § 2849. P.L. § 2776. G.L. § 3232. 1912, No. 101 . 1910, No. 99 . 1908, No. 71 , § 1.

Amendments--2017 (Adj. Sess.). Section amended generally.

Amendments--2009 (Adj. Sess.) Subsec. (a): Substituted "Probate Division of the Superior Court" for "probate court."

Amendments--1985 (Adj. Sess.). Subsec. (a): Deleted "his" preceding "appointment", substituted "motion" for "application" following "guardian, on" and made other minor stylistic changes.

Subsec. (b): Substituted "state" for "probate district" preceding "from which letters" in the first sentence, deleted "probate" preceding "court" and "in the district in which it is made" thereafter in the second sentence.

Amendments--1959. Subsec. (a): Substituted "or" for "of" preceding "a guardian".

Cross References

Cross references. Foreign fiduciaries and sureties generally, see Rule 68, V.R.P.P.

Service generally, see Rules 4 and 5, V.R.P.P.

ANNOTATIONS

Analysis

1. Nonresidents.

Nonresident of this state may not hold office of executor of will as a matter of right but only within discretion of the probate court. In re Estate of Daniels, 116 Vt. 190, 71 A.2d 586 (1950).

2. Guardian of minor.

Neither the 1797 statute nor the current statute prescribing requirements for administrators says anything about the common law rule that the guardian of an infant who would otherwise be entitled to administration of an estate was entitled to administer the estate as a matter of right; rather, these statutes reiterate only the undisputed point that the legislature does not approve of a minor personally serving as administrator. That legislative intent is not inconsistent with allowing a minor's guardian - someone who is of lawful age - to stand in the shoes of the minor and become administrator, and the common law rule therefore remains in place. In re Estate of Lamore, 187 Vt. 571, 989 A.2d 486 (mem.) (2009).

§ 905. Appeal to the Civil Division of the Superior Court.

If any person appeals to the Civil Division of the Superior Court an order appointing an executor or administrator and the appeal is sustained, the Civil Division of the Superior Court shall appoint another suitable person as executor or administrator, and certify the judgment and subsequent appointment to the Probate Division of the Superior Court. The Probate Division shall set bond and, after the required bond is filed by the executor or administrator, grant letters of administration.

Amended 1985, No. 144 (Adj. Sess.), § 37; 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011; 2017, No. 195 (Adj. Sess.), § 5.

History

Source. V.S. 1947, § 2850, P.L. § 2777. G.L. § 3233. P.S. § 2759. V.S. § 2373. R.L. § 2065. 1876, No. 110 .

Amendments--2017 (Adj. Sess.). Section amended generally.

Amendments--1985 (Adj. Sess.). Substituted "superior" for "county" preceding "court" in the section heading and preceding "court shall" in the first sentence, substituted "the probate" for "such" preceding "court" and deleted "to him as though he had been appointed by such court" following "administration" in the second sentence, and made other minor stylistic changes throughout the section.

ANNOTATIONS

Analysis

1. Remand from supreme court.

When an appeal to county court from an order appointing an administrator has passed to supreme court for decision on exceptions, remand is properly made to probate court rather than to county court. In re Estate of Watkins, 114 Vt. 109, 41 A.2d 180 (1944).

2. Appeal from order of removal.

Executor has the right of appeal from order of probate court removing him and appointing an administrator in his place. In re Bellows' Estate, 60 Vt. 224, 14 A. 697 (1887).

§ 906. Bond; amount, conditions.

An executor or administrator shall give a bond to secure the executor's or administrator's performance of the executor's or administrator's duties. The Probate Division of the Superior Court shall set the amount of the bond and may order that the bond have sureties. The bond shall be for the security and benefit of all interested persons, except where a bond is to be taken to the adverse party, and shall be filed before the court issues letters of administration. The court shall set the conditions of any bond, which shall include the following:

  1. to make and return an inventory to the Probate Division of the Superior Court within 60 days as required by law and the rules of the court;
  2. to administer according to law and the decedent's will, if any, all property comprising the decedent's estate, whether in the possession of the executor or administrator or others for the benefit of the executor or administrator, and discharge all debts, legacies, and charges;
  3. to render an account of administration to the Probate Division within one year and at any other time when required by the court;
  4. to pay to the State of Vermont all inheritance and transfer taxes that the person appointed is required to pay by the provisions of 32 V.S.A. chapters 181 and 183 and to perform all other duties required by those chapters; and
  5. to perform all orders and decrees of the Probate Division.

    Amended 1985, No. 144 (Adj. Sess.), § 38; 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011; 2017, No. 195 (Adj. Sess.), § 5.

History

Source. V.S. 1947, § 2851. P.L. § 2778. 1925, No. 50 , § 1. 1923, No. 53 , § 2. 1919, No. 88 , § 2. G.L. § 3234. P.S. § 2760. V.S. § 2374. R.L. § 2066. G.S. 50, §§ 2, 7. G.S. 51, § 4. R.S. 46, §§ 2, 7. 1821, p. 41. R. 1797, p. 215, § 16. R. 1797, p. 221, § 26. R. 1787, p. 56.

Reference in text. Chapters 181 and 183 of Title 32, referred to in subdiv. (4), were omitted from Vermont Statutes Annotated in the 1981 Replacement Edition of Titles 32 and 33. Superseding provisions are now set out in § 7401 et seq. of Title 32.

Amendments--2017 (Adj. Sess.). Section amended generally.

Amendments--2009 (Adj. Sess.) Substituted "probate division of the superior court" for "probate court" in the introductory paragraph and in subdivs. (1)-(3) and (5).

Amendments--1985 (Adj. Sess.). Section amended generally.

Cross References

Cross references. Foreign surety, see Rule 68, Vermont Rules of Probate Procedure.

Inventory and accounts generally, see Rule 66, Vermont Rules of Probate Procedure.

Probate bonds generally, see § 2101 et seq. of this title.

ANNOTATIONS

Analysis

1. Duration of liability.

Surety on bond of special administrator remains liable until trust is terminated and he has rendered his final account, unless discharged as provided by § 2105 of this title, and so, where a special administrator continued to act as such after the final establishment of will which named him executor, surety on his official bond remained liable. American Surety Co. v. Gaskill's Administrator, 85 Vt. 358, 82 A. 218 (1912).

2. Executor or administrator indebted to decedent.

When executor is insolvent at time of appointment and is indebted to his testator, his failure to pay his debt is not a breach of trust for which a surety on his probate bond is liable; and, if in such case the executor in his accounting treats his own debt as available assets and probate court decrees distribution accordingly, surety is not bound by decree; and a court of equity has jurisdiction and will grant relief. Lyon v. Osgood, 58 Vt. 707, 7 A. 5 (1886).

When an executor or administrator is indebted to testator or intestate, he must charge himself with amount due from him, if solvent, or it will be a breach of his bond. Probate Court v. Merriam, 8 Vt. 234 (1836).

3. Administrator de bonis non.

If an administrator de bonis non neglects to make an inventory of all the estate of the deceased, real and personal, which remained unadministered by the former administrator, and return the same to the court of probate within time limited by the court, it is a breach of condition of his bond. Wilson v. Keeler, 2 D. Chip. 16 (1824).

4. Account of administration.

Settlement of an executor's or administrator's account, before court of probate, unappealed from, is conclusive upon every subject adjudicated upon. Probate Court v. Merriam, 8 Vt. 234 (1836).

Settlement before probate court does not preclude the heirs, legatees or creditors from proving that other property came into hands of administrator or executor, of which no account was rendered. Probate Court v. Merriam, 8 Vt. 234 (1836).

The condition in an administrator's bond to judge of probate that administrator shall make, or cause to be made, a true and just account of his administration, is not broken by neglect in administrator to pay debts and make a distribution of estate of deceased. Judge of Probate v. Pratt, 1 D. Chip. 233 (1814).

5. Foreign property.

Executor who records a foreign will, in a suit upon his bond given upon such recording, is not holden for effects received in the country where testator had his domicile and died. Probate Court v. Matthews, 6 Vt. 269 (1834).

6. Fraudulent conveyances.

Where insolvent executrix of insolvent estate sold real estate belonging to the estate, without license of probate court and in fraud of creditors, fact that creditors of estate might have an accounting and recover on her bond would not preclude them from maintaining a suit in equity to set aside deed, for remedy on bond was merely secondary and cumulative. Wetmore & Morse Granite Co. v. Bertoli, 87 Vt. 257, 88 A. 898 (1913).

Cited. State v. Therrien, 161 Vt. 26, 633 A.2d 272 (1993).

§ 907. Repealed. 2017, No. 195 (Adj. Sess.), § 5.

History

Former § 907. Former § 907, relating to residuary legatee as executor, bond; bond provision in will; further bond, was derived from V.S. 1947, § 2852; P.L. § 2779; G.L. § 3235; P.S. § 2761; 1896, No. 41 , § 1; V.S. § 2375; R.L. § 2067; 1876, No. 85 ; G.S. 50, § 3; R.S. 46, § 3; R. 1797, p. 215, § 16 and amended by 1985, No. 144 (Adj. Sess.), § 39; 2009, No. 154 (Adj. Sess.), § 238a.

Annotations From Former § 907

1. Power of court to order bond.

Subsec. (b) of this section empowers the probate court to demand a bond even though the testator has placed complete faith in his or her executor by not requiring a bond, but the amount of the bond must be restricted to an amount sufficient to protect creditors of the estate. Estate of Waters, 148 Vt. 160, 530 A.2d 565 (1987).

When one is both executor and trustee, and by will is not required to execute a bond, probate court, if deemed proper from a subsequent change of the executor's circumstances, can order him to give a bond, and such order is not appealable to county court. Felton v. Sowles, 57 Vt. 382 (1885).

§ 908. Bonds of joint administrators and executors.

When two or more persons are appointed as executors or administrators, the Probate Division of the Superior Court may take a separate bond from each, with or without sureties, or a joint bond with or without sureties from any or all.

Amended 2017, No. 195 (Adj. Sess.), § 5.

History

Source. V.S. 1947, § 2853. P.L. § 2780. G.L. § 3236. P.S. § 2762. V.S. § 2376. R.L. § 2068. G.S. 50, § 13. G.S. 51, § 19. R.S. 46, § 13. R.S. 47, § 19.

Amendments--2017 (Adj. Sess.). Section amended generally.

§ 909. Executor refusing trust or not giving bond.

A person named as an executor in a will who refuses to accept appointment or neglects for 20 days to give a bond shall not intermeddle or act as executor. If the person refuses to accept or neglects to give a bond, the Probate Division of the Superior Court may grant letters of administration to any other named executor who is capable and willing to accept the appointment and gives bond. If the other named executors fail to accept the appointment or give a bond, the court shall grant letters of administration with the will annexed to one or more suitable persons who would have qualified to be appointed as administrator had the testator died intestate.

Amended 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011; 2017, No. 195 (Adj. Sess.), § 5.

History

Source. V.S. 1947, § 2854. P.L. § 2781. G.L. § 3237. P.S. § 2763. V.S. § 2377. R.L. § 2069. G.S. 50, §§ 4, 5. R.S. 46, §§ 4, 5. 1821, pp. 40, 42. R. 1797, p. 214, §§ 15, 16. R. 1787, p. 51.

Amendments--2017 (Adj. Sess.). Section amended generally.

Amendments--2009 (Adj. Sess.) Substituted "probate division of the superior court" for "probate court."

Cross References

Cross references. Persons to whom administration granted, see § 903 of this title.

ANNOTATIONS

1. Failure to file bond.

Probate court may vacate appointment of executor for failure to file bond required by this section. First National Bank v. Harvey, 111 Vt. 281, 16 A.2d 184 (1940).

§ 910. When executor is a minor.

When a person named as executor in a will is under age at the time of proving the will, issuance of letters of administration may be granted to another executor named in the will, who accepts appointment and gives the required bond, or to another suitable person if he or she fails to accept appointment or to post bond. A minor who attains the age of legal majority during the estate administration shall not displace the incumbent executor or administrator, but if a vacancy occurs during administration, the former minor may apply to the court for appointment as successor executor or administrator.

Amended 2017, No. 195 (Adj. Sess.), § 5.

History

Source. V.S. 1947, § 2855. P.L. § 2782. 1933, No. 157 , § 2569. G.L. § 3238. P.S. § 2764. V.S. § 2378. R.L. § 2070. G.S. 50, § 6. R.S. 46, § 6. 1821, p. 40. R. 1797, p. 215, § 16.

Amendments--2017 (Adj. Sess.). Section amended generally.

§§ 911, 912. Repealed. 2017, No. 195 (Adj. Sess.), § 5.

History

Source. V.S. 1947, § 2856. P.L. § 2783. G.L. § 3239. P.S. § 2765. V.S. § 2379. R.L. § 2071. G.S. 50, § 12. R.S. 46, § 12. 1821, p. 44. R. 1797, p. 216, § 17.

Former §§ 911, 912. Former § 911, relating to executor of executor not to administer first estate, was derived from V.S. 1947, § 2856; P.L. § 2783; G.L. § 3239; P.S. § 2765; V.S. § 2379; R.L. § 2071; G.S. 50, § 12; R.S. 46, § 12; 1821, p. 44; R. 1797, p. 216, § 17.

Former § 912, relating to married women, was derived from V.S. 1947, § 2862; P.L. § 2789; G.L. § 3245; P.S. § 2771; V.S. § 2385; 1894, No. 63 ; 1894, No. 162 , § 2324; R.L. § 2075; G.S. 50, § 8; G.S. 51, § 13; R.S. 46, § 8; R.S. 47, § 13; 1821, p. 44; 1817, p. 92; R. 1797, p. 216, § 17.

§ 913. Death or removal of executor or administrator.

When an executor or administrator dies, resigns, is removed or the executor's or administrator's authority is otherwise extinguished, any remaining executor or administrator may complete the administration unless otherwise provided by the will. If there is no other executor or administrator then serving, the court may grant letters of administration to another suitable person. The executor or administrator of an executor or administrator shall not administer the estate of the first decedent.

Amended 2017, No. 195 (Adj. Sess.), § 5.

History

Source. V.S. 1947, § 2857. P.L. § 2784. G.L. § 3240. P.S. § 2766. V.S. § 2380. R.L. § 2072. G.S. 50, § 10. G.S. 51, §§ 11, 14. 1852, No. 20 , § 2. R.S. 46, § 10. R.S. 47, §§ 11, 14. 1821, pp. 43, 44. 1816, p. 140. R. 1797, p. 216, § 17. R. 1797, p. 227, §§ 37, 39, 40. 1791, p. 4.

Amendments--2017 (Adj. Sess.). Section amended generally.

Cross References

Cross references. Termination of appointment, see § 917a of this title.

ANNOTATIONS

1. Appointment of new administrator.

This section confers discretionary power upon the court in determining whether a person is suitable for appointment as an administrator. In re Estate of Watkins, 114 Vt. 109, 41 A.2d 180 (1944).

The question of whether a person is suitable for appointment as administrator d.b.n., c.t.a. must be determined in light of the facts and circumstances bearing upon his suitableness for appointment in respect to the particular estate. In re Estate of Watkins, 114 Vt. 109, 41 A.2d 180 (1944).

The fact that a person has been appointed special administrator of an estate has no bearing on the question of whether such appointee is a suitable person for appointment as administrator d.b.n., c.t.a. under this section. In re Estate of Watkins, 114 Vt. 109, 41 A.2d 180 (1944).

§ 914. Power of new administrator.

An administrator appointed in the place of a former executor or administrator shall have the same authority in settling the estate as the former executor or administrator, including the authority to prosecute or defend actions commenced by or against the former executor or administrator, and the new administrator may revive actions and have execution on judgments recovered in the name of the former executor or administrator on behalf of the estate.

Amended 1971, No. 185 (Adj. Sess.), § 171, eff. March 29, 1972; 2017, No. 195 (Adj. Sess.), § 5.

History

Source. V.S. 1947, § 2858. P.L. § 2785. G.L. § 3241. P.S. § 2767. V.S. § 2381. R.L. § 2073. G.S. 51, § 15. R.S. 47, § 15. 1821, p. 53. R. 1797, p. 216, § 17.

Amendments--2017 (Adj. Sess.). Section amended generally.

Amendments--1971 (Adj. Sess.). Substituted "revive actions" for "sue out a scire facias" preceding "and have execution" in the second sentence.

§ 915. Appointment of administrator to act with survivor.

When an executor or administrator dies, resigns, is removed or authority is otherwise extinguished, leaving a remaining executor or administrator, administration may be granted to some suitable person, to serve with the remaining executor or administrator, upon motion of any person interested in the estate of the deceased.

Amended 1985, No. 144 (Adj. Sess.), § 40; 2017, No. 195 (Adj. Sess.), § 5.

History

Source. V.S. 1947, § 2860. P.L. § 2787. G.L. § 3243. P.S. § 2769. V.S. § 2382. 1888, No. 81 , § 1.

Amendments--2017 (Adj. Sess.). Inserted "otherwise" following "authority is" and deleted ", as widow, heir, creditor, devisee, legatee or their legal representatives" following "deceased".

Amendments--1985 (Adj. Sess.). Deleted "his or her" preceding "authority", inserted "to serve" preceding "with" and substituted "the" for "such" thereafter and "motion" for "the application" following "upon".

§ 916. Powers of administrator appointed to act with survivor.

An executor or administrator appointed under section 915 of this title shall have the same authority as the remaining executor or administrator and may prosecute or defend actions commenced by or against the former executor or administrator and may revive actions and have execution on judgments recovered in the name of the former executor or administrator on behalf of the estate.

Amended 1971, No. 185 (Adj. Sess.), § 172, eff. March 29, 1972; 2017, No. 195 (Adj. Sess.), § 5.

History

Source. V.S. 1947, § 2860. P.L. § 2787. G.L. § 3243. P.S. § 2769. V.S. § 2383. 1888, No. 81 , § 2. R.L. § 2073. G.S. 51, § 15. R.S. 47, § 15. 1821, p. 53. R. 1797, p. 216, § 17.

Amendments--2017 (Adj. Sess.). Section amended generally.

Amendments--1971 (Adj. Sess.). Substituted "revive actions" for "sue out a scire facias" preceding "and have execution" and "the" for "such" preceding "former".

ANNOTATIONS

1. Scire facias by administrator de bonis non.

Scire facias which an administrator appointed in place of former executor or administrator was authorized to sue out upon judgment recovered in name of such former executor or administrator, could be sued out and an execution obtained in name of administrator de bonis non, his representative capacity as such being stated. Hunt v. Payne, 29 Vt. 176 (1857).

§ 917. Power of regulation.

The Probate Division of the Superior Court shall regulate the conduct of persons appearing in proceedings or involved in the administration of estates or other matters within the court's jurisdiction. When it appears to the court that a person has failed to comply with procedures required by law or the Rules of Probate Procedure, or that an estate is not being promptly and properly administered, or that a fiduciary is incapable or unsuitable to discharge the trust, the court may give notice of the complaint or omission together with a notice to correct the deficiency or complaint within a specified period of time or cause the party to appear and answer the matter. Notice shall be given as provided by the Rules of Probate Procedure. The court may restrain a person from performing specified acts or the exercise of any powers or discharge of any duties of office, or make any other order to secure proper performance of duty. It may exercise the powers of contempt; tax costs, including surcharge; order a party to pay to other parties the amount of reasonable expenses, including reasonable attorney's fees, or losses incurred because of an act or omission; and remove or suspend a fiduciary.

Amended 1985, No. 144 (Adj. Sess.), § 41; 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011; 2017, No. 195 (Adj. Sess.), § 5.

History

Source. V.S. 1947, § 2861. P.L. § 2788. G.L. § 3244. 1917, No. 254 , § 3196. P.S. § 2770. V.S. § 2384. R.L. § 2074. G.S. 50, § 9. G.S. 51, § 12. 1852, No. 20 , § 1. R.S. 46, § 9. R.S. 47, § 12. 1821, p. 43. R. 1797, p. 216, § 17. R. 1797, p. 227, § 37.

Amendments--2017 (Adj. Sess.). Inserted ", including reasonable attorney's fees," following "expenses" in the last sentence.

Amendments--2009 (Adj. Sess.) Substituted "probate division of the superior court" for "probate court."

Amendments--1985 (Adj. Sess.). Section amended generally.

Cross References

Cross references. Supervision of fiduciaries generally, see Rule 67, V.R.P.P.

ANNOTATIONS

Analysis

1. Removal.

Probate court could vacate appointment of an executor because of grounds for removal specified in this section. First National Bank v. Harvey, 111 Vt. 281, 16 A.2d 184 (1940).

Executor had right of appeal from order of probate court removing him and appointing an administrator in his place. In re Bellows' Estate, 60 Vt. 224, 14 A. 697 (1887).

Court of probate should not remove executors living out of state, and grant administration to another, when fact of their living out of the state was known at time of granting letters testamentary, when such executors have commenced a suit to recover a claim, and application for their removal is made by person sued. Wiley v. Brainerd, 11 Vt. 107 (1839).

2. Conflict of interest.

Administrator or executor who had a conflicting personal interest which would prevent him from doing his official duty was unsuitable to act in such capacity. In re Estate of McGowan, 118 Vt. 170, 102 A.2d 856 (1954).

Cited. In re Estate of Hogg, 147 Vt. 101, 510 A.2d 1323 (1986).

§ 917a. Termination of appointment.

  1. Termination of appointment of an executor or administrator ends the rights and powers pertaining to the office as conferred by law, the Rules of Probate Procedure, or any will or trust. Termination does not discharge an executor or administrator from liability for transactions or omissions occurring before termination, or relieve the executor or administrator of the duty to preserve assets subject to the executor's or administrator's control, or to account for and deliver assets. Termination does not affect the jurisdiction of the Probate Division of the Superior Court over the fiduciary, but terminates the estate fiduciary's authority.
  2. The appointment of an executor or administrator is terminated:
    1. upon death;
    2. when the estate is closed as provided by the Rules of Probate Procedure;
    3. after resignation upon the appointment of a successor estate fiduciary and delivery of the assets to the successor; or
    4. upon removal by the Probate Division of the Superior Court.

      Added 1985, No. 144 (Adj. Sess.), § 42; amended 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011; 2017, No. 195 (Adj. Sess.), § 5.

History

Amendments--2017 (Adj. Sess.). Section amended generally.

Amendments--2009 (Adj. Sess.) Substituted "probate division of the superior court" for "probate court" in subsec. (a) and subdiv. (b)(4).

Cross References

Cross references. Closing a probate estate, see Rule 60.1, Vermont Rules of Probate Procedure.

Exoneration of surety upon discharge of fiduciary, see § 2107 of this title.

§ 918. One of the coexecutors disqualified, others may act.

When coexecutors appointed in a will cannot act as such, those who can act may be appointed to administer the estate.

Amended 2017, No. 195 (Adj. Sess.), § 5.

History

Source. V.S. 1947, § 2863. P.L. § 2790. G.L. § 3246. P.S. § 2772. V.S. § 2386. R.L. § 2076. G.S. 50, § 11. R.S. 46, § 11. 1821, p. 44.

Amendments--2017 (Adj. Sess.). Section amended generally.

§ 919. Persons unheard from for five years; settlement of estate.

When a person is absent and unheard from for five years or when a certificate of presumed death of a person has been issued under 18 V.S.A. § 5219 , that person's estate shall be subject to administration by the Probate Division of the Superior Court. If a will exists, the will shall be presented to the court and may be allowed and the estate closed thereunder. If no will is found, the court having jurisdiction of the estate may grant letters of administration thereof and proceed with the estate as in the settlement of intestate estates. Distribution of the estate shall not be made until five years after the granting of administration or letters testamentary. Before granting an order for distribution or for payment of legacies named in any will that may have been allowed, the court shall require from the legatees or distributees a bond or bonds with sufficient surety to the court, which may take into account the likelihood of the reappearance of the person presumed deceased, conditioned to return the amount distributed or paid with lawful interest thereon to the person so absent and unheard from upon reappearance and demand for the same. If the distributee or legatee is unable to give the security required by this section, the same shall be placed at interest upon security approved by the court or by the executor or administrator, as the case may be, and the interest shall be paid annually to the distributee or legatee and the estate shall remain at interest until the Probate Division of the Superior Court by which the letters of administration or letters testamentary were granted shall order it paid to the legatees or distributees. Upon motion, an order shall not be made permitting payment or distribution without the security required by this section until at least seven years have elapsed since the granting of letters testamentary or of administration on the estate of the supposed decedent.

Amended 1985, No. 144 (Adj. Sess.), § 43; 1989, No. 236 (Adj. Sess.), § 2, eff. June 4, 1990; 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011; 2017, No. 195 (Adj. Sess.), § 5.

History

Source. V.S. 1947, § 2864. P.L. § 2791. G.L. § 3247. P.S. § 2773. 1906, No. 82 , § 1. V.S. § 2387. R.L. § 2077. 178, No. 57 . 1876, No. 82 , § 2.

Amendments--2017 (Adj. Sess.). Section amended generally.

Amendments--2009 (Adj. Sess.) Substituted "probate division of the superior court" for "probate court."

Amendments--1989 (Adj. Sess.). Inserted "or when a certificate of presumed death of a person has been issued under section 5219 of Title 18" following "five years" in the first sentence.

Amendments--1985 (Adj. Sess.). Rewrote the first sentence, added the second sentence, substituted "no will is found, the court" for "he left no will, the probate court" following "if" in the third sentence, substituted "allowed" for "probated" following "which may have been" in the fourth sentence, deleted "by him" following "annually" in the fifth sentence, inserted "upon motion" preceding "an order shall not be made" at the beginning of the sixth sentence and deleted "upon such an application" thereafter, and made other minor stylistic changes throughout the section.

§ 920. Liability of executor; rights on return.

After the administration and distribution, the executor or administrator shall not be liable to the person so absent and unheard from in any action for the recovery of the estate. If the absent person proves to be alive, he or she shall be entitled to his or her estate notwithstanding a settlement and distribution made pursuant to section 919 of this title, and may bring an action to recover any portion of the estate that anyone received as a result of the settlement and distribution.

Amended 2017, No. 195 (Adj. Sess.), § 5.

History

Source. V.S. 1947, § 2865. P.L. § 2792. G.L. § 3247. P.S. § 2773. 1906, No. 82 , § 1. V.S. § 2387. R.L. § 2077. 1878, No. 57 . 1876, No. 82 , § 2.

Revision note. Deleted "of contract" following "action" in the second sentence to conform reference to Rule 2, Vermont Rules of Civil Procedure, pursuant to 1971, No. 185 (Adj. Sess.), § 236(d). See note set out under § 219 of Title 4.

Amendments--2017 (Adj. Sess.). Section amended generally.

§ 921. Property of persons serving in armed force - Absent persons, conservator.

When a person, hereinafter referred to as an absentee, who is serving in or with the U.S. Armed Forces, its allies, or as a crew member of a merchant vessel, has been reported or listed as missing, missing in action, interned, or beleaguered, besieged, or captured by an enemy, and has an interest in any property in this State and has not provided an adequate power of attorney authorizing another to act on the absentee's behalf in regard to the absentee's property, the Probate Division of the Superior Court may appoint a conservator to take charge of the absentee's estate under the supervision and subject to the further orders of the court. The appointment may be made upon a petition alleging the foregoing facts, showing the necessity of providing for the care of property, and may be brought by any person who would have an interest in the property if the absentee were deceased, or on the court's own motion. The court shall schedule a hearing and notice shall be given as provided by the Rules of Probate Procedure.

Amended 1985, No. 144 (Adj. Sess.), § 44; 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011; 2017, No. 195 (Adj. Sess.), § 5.

History

Source. V.S. 1947, § 2866. 1947, No. 202 , § 2889. 1945, No. 34 , § 1.

Amendments--2017 (Adj. Sess.). Substituted "U.S. Armed Forces" for "armed forces of the United States" preceding "its allies".

Amendments--2009 (Adj. Sess.) Substituted "probate division of the superior court" for "probate court."

Amendments--1985 (Adj. Sess.). Section amended generally.

Cross References

Cross references. Notice, see Rule 4, V.R.P.P.

Scheduling of hearings, see Rule 40, V.R.P.P.

§ 922. Powers of conservator; bond.

The Probate Division of the Superior Court shall have full discretionary authority to appoint any suitable person as conservator and may require the conservator to post an adequate surety bond and to make reports the court may deem necessary. The conservator shall have the same powers and authority as the guardian of the property of a minor or incapacitated person.

Amended 1985, No. 144 (Adj. Sess.), § 45; 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011; 2017, No. 195 (Adj. Sess.), § 5.

History

Source. V.S. 1947, § 2867. 1945, No. 34 , § 2.

Amendments--2017 (Adj. Sess.) Made minor stylistic changes.

Amendments--2009 (Adj. Sess.) Substituted "probate division of the superior court" for "probate court."

Amendments--1985 (Adj. Sess.). Inserted "probate" preceding "court shall" and made other minor stylistic changes in the first sentence and substituted "a minor or incapacitated person" for "an infant or incompetent and shall be considered as an officer or arm of the court" following "property of" in the second sentence.

Cross References

Cross references. Probate bonds, see § 2101 et seq. of this title.

§ 923. Termination of conservatorship.

At any time upon motion signed by the absentee, or of an attorney-in-fact acting under an adequate power of attorney granted by the absentee, the Probate Division of the Superior Court shall direct the termination of the conservatorship and the transfer of all property held thereunder to the absentee or to the designated attorney-in-fact. Likewise, if at any time subsequent to the appointment of a conservator it shall appear that the absentee has died and an executor or administrator has been appointed for the absentee's estate, the court shall direct the termination of the conservatorship, an accounting therein, and the transfer of all property of the deceased absentee held thereunder to the executor or administrator.

Amended 1985, No. 144 (Adj. Sess.), § 46; 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011; 2017, No. 195 (Adj. Sess.), § 5.

History

Source. V.S. 1947, § 2868. 1945, No. 34 , § 3.

Amendments--2017 (Adj. Sess.) Made minor stylistic changes.

Amendments--2009 (Adj. Sess.) Substituted "probate division of the superior court" for "probate court."

Amendments--1985 (Adj. Sess.). Substituted "motion" for "petition" preceding "signed by the absentee, or" and deleted "on petition" thereafter and inserted "probate" preceding "court" in the first sentence, and substituted "the absentee's" for "his" following "appointed for" and made other minor stylistic changes in the second sentence.

§ 924. Revocation of letters of administration - When will discovered.

When, after granting letters of administration of the estate of a person as if dying intestate, a will of the deceased person is allowed, the letters of administration shall be revoked and the powers of the administrator cease, the letters of administration shall be surrendered, and an accounting shall be filed as the Probate Division of the Superior Court directs.

Amended 1985, No. 144 (Adj. Sess.), § 47; 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011; 2017, No. 195 (Adj. Sess.), § 5.

History

Source. V.S. 1947, § 2869. P.L. § 2793. G.L. § 3248. P.S. § 2774. V.S. § 2388. R.L. § 2078. G.S. 51, § 16. R.S. 47, § 16. 1821, p. 42.

Amendments--2017 (Adj. Sess.). Made minor stylistic changes.

Amendments--2009 (Adj. Sess.) Substituted "probate division of the superior court" for "probate court."

Amendments--1985 (Adj. Sess.). Section amended generally.

§ 925. Powers of executor of discovered will.

In such case, the executor of the will may demand, sue for, and collect the goods, chattels, rights, and credits of the deceased remaining unadministered, and may prosecute to final judgment actions commenced by the administrator before the revocation of his or her letters of administration.

Amended 2017, No. 195 (Adj. Sess.), § 5.

History

Source. V.S. 1947, § 2870. P.L. § 2794. G.L. § 3249. P.S. § 2775. V.S. § 2389. R.L. § 2079. G.S. 51, § 17. R.S. 47, § 17.

Amendments--2017 (Adj. Sess.). Made minor stylistic changes.

§ 926. Revocation of letters not to avoid acts under them.

Before the revocation of his or her letters testamentary or of administration, the acts of an executor or administrator shall be valid the same as if revocation had not been made.

Amended 2017, No. 195 (Adj. Sess.), § 5.

History

Source. V.S. 1947, § 2871. P.L. § 2795. G.L. § 3250. P.S. § 2776. V.S. § 2390. R.L. § 2080. G.S. 51, § 18. R.S. 47, § 18. 1821, p. 42. R. 1797, p. 240, § 67.

Amendments--2017 (Adj. Sess.). Made minor stylistic changes.

§ 927. Executor or administrator of deceased partner - access to books.

The executor or administrator of a deceased partner at all times shall have access to and make examination and take copies of the books and papers relating to the partnership business, and at all times shall have the right to examine and make invoices of the property belonging to the partnership. The surviving partner or partners, on request, shall exhibit to him or her all the books, papers, and property in their hands or control.

Amended 2017, No. 195 (Adj. Sess.), § 5.

History

Source. V.S. 1947, § 2877. P.L. § 2801. G.L. § 3256. P.S. § 2782. V.S. § 2396. R.L. § 2086. 1867, No. 46 , § 1.

Amendments--2017 (Adj. Sess.). Substituted "the" for "such" preceding "partnership"; inserted "or her" following "him"; and substituted "the" for "such" preceding "books".

§ 928. Probate Division of the Superior Court may compel compliance.

The Probate Division of the Superior Court in which is pending a proceeding for the settlement of the estate of a deceased partner, on motion of the executor or administrator, may cite a surviving partner or partners before it, and, by a proper order or decree, compel the granting of the rights given in section 927 of this title and may enforce an order or decree by issuing its warrant to commit the partner or partners to the custody of the Commissioner of Corrections until compliance is given.

Amended 1985, No. 144 (Adj. Sess.), § 48; 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011; 2017, No. 195 (Adj. Sess.), § 5.

History

Source. V.S. 1947, § 2878. P.L. § 2802. G.L. § 3257. P.S. § 2783. V.S. § 2397. R.L. § 2087. 1867, No. 46 , § 2.

Amendments--2017 (Adj. Sess.) Made minor stylistic changes.

Amendments--2009 (Adj. Sess.) Substituted "probate division of the superior court" for "probate court."

Amendments--1985 (Adj. Sess.). Section amended generally.

§ 929. Buildings to be kept in repair.

An executor or administrator shall maintain in tenantable repair the houses, buildings, and fences belonging to the estate and deliver the same in such repair to the heirs or devisees when directed by the Probate Division of the Superior Court.

Amended 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011; 2017, No. 195 (Adj. Sess.), § 5.

History

Source. V.S. 1947, § 2879. P.L. § 2803. G.L. § 3258. P.S. § 2784. V.S. § 2398. R.L. § 2088. G.S. 52, § 6. R.S. 48, § 6. 1821, p. 50. R. 1797, p. 233, § 50. R. 1787, p. 57.

Amendments--2017 (Adj. Sess.) Made minor stylistic changes.

Amendments--2009 (Adj. Sess.) Substituted "probate division of the superior court" for "probate court."

§ 930. Estate not willed.

An executor shall administer the estate of the testator not disposed of by will.

History

Source. V.S. 1947, § 2880. P.L. § 2804. G.L. § 3259. P.S. § 2785. V.S. § 2399. R.L. § 2089. G.S. 49, § 5. R.S. 45, § 5. 1821, p. 39. R. 1797, p. 212, § 8.

§ 931. Limitation on claims of creditors.

All claims against the decedent's estate that arose before the death of the decedent, including claims of the State and any subdivision thereof, absolute or contingent, liquidated or unliquidated, founded on contract, tort, or other legal basis, if not barred earlier by other statute of limitations, are barred against the estate, the legal representative of the estate, and the heirs and devisees of the decedent, unless presented within one year after the decedent's death. Nothing in this section affects or prevents any proceeding to enforce any mortgage, pledge, or other lien upon the property of the estate.

Added 1973, No. 228 (Adj. Sess.), § 1, eff. April 3, 1974; amended 1985, No. 144 (Adj. Sess.), § 49; 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011; 2017, No. 195 (Adj. Sess.), § 5.

History

Amendments--2017 (Adj. Sess.). Section amended generally.

Amendments--2009 (Adj. Sess.) Substituted "probate division of the superior court" for "probate court."

Amendments--1985 (Adj. Sess.). Rewrote the first sentence.

Cross References

Cross references. Actions by and against administrators, see § 1401 et seq. of this title.

Settlement of claims, see § 1201 et seq. of this title.

Subchapter 2. Special Administrators

Cross References

Cross references. Appointment of special administrator to act on claim between executor or administrator and estate, see § 1412 of this title.

§ 961. Special administrator; appointment when estate jeopardized; conduct of business.

When the interests of the estate of a deceased person will be jeopardized by the delay intervening between death and the appointment of an administrator or executor, the Probate Division of the Superior Court may, upon motion of an heir or next of kin, appoint a special administrator to act until an administrator or executor is appointed and qualified. The special administrator may continue operation of the business conducted by the deceased, including application for and operating under the transfer of any license held by the deceased for the dispensing of alcoholic beverages.

Amended 1985, No. 144 (Adj. Sess.), § 50; 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011; 2017, No. 195 (Adj. Sess.), § 5.

History

Source. 1949, No. 64 .

Amendments--2017 (Adj. Sess.) Made minor stylistic changes.

Amendments--2009 (Adj. Sess.) Substituted "probate division of the superior court" for "probate court."

Amendments--1985 (Adj. Sess.). Substituted "death" for "the decease of such person" following "between" and "motion" for "the application" following "upon" in the first sentence and made other minor stylistic changes throughout the section.

Cross References

Cross references. Transfer of alcoholic beverage license to executor or administrator, see § 235 of Title 7.

§ 962. Appointment in case of delay.

When there is delay in granting letters testamentary or of administration, occasioned by an appeal from the allowance or disallowance of a will, or from other cause, the Probate Division of the Superior Court may appoint a special administrator to act in collecting and taking charge of the estate of the deceased until the questions causing the delay are decided and an executor or administrator is appointed. An appeal shall not be allowed from the appointment of a special administrator.

Amended 1985, No. 144 (Adj. Sess.), § 51; 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011; 2017, No. 195 (Adj. Sess.), § 5.

History

Source. V.S. 1947, § 2872. P.L. § 2796. G.L. § 3251. P.S. § 2777. V.S. § 2391. R.L. § 2081. G.S. 51, § 5. R.S. 47, § 5. 1821, p. 41.

Amendments--2017 (Adj. Sess.) Made minor stylistic changes.

Amendments--2009 (Adj. Sess.) Substituted "probate division of the superior court" for "probate court."

Amendments--1985 (Adj. Sess.). Substituted "a special" for "an" following "appoint" and deleted "thereupon" preceding "appointed" in the first sentence and made other minor stylistic changes in the second sentence.

ANNOTATIONS

Analysis

1. Appointment as general administrator.

Fact that a person had been appointed special administrator was not conclusive of the fitness of such person to act as general administrator. In re Estate of Watkins, 114 Vt. 109, 41 A.2d 180 (1944).

2. Expenses.

Where special administrator was appointed upon an appeal from establishment of a will, only such of administrator's expenses as would not have been necessary but for appeal may be recovered in action on appeal bond conditioned for payment of "all intervening damages and costs." Probate Court v. Dodge, 87 Vt. 133, 88 A. 529 (1913).

3. Termination of trust.

Where a special administrator is not otherwise connected with the administration, he cannot relieve himself of the trust by any turning over of the property before the appointment of an executor or administrator, and where the special administrator is also named in the will as executor, the final establishment of the will does not in itself terminate the trust as special administrator. American Surety Co. v. Gaskill's Administrator, 85 Vt. 358, 82 A. 218 (1912).

4. Actions by heirs.

Special administrator was properly allowed to become a party plaintiff in suit in equity by intestate's heir to set aside intestate's conveyance of realty and personalty, for an accounting and for general relief. Slafter v. Savage, 89 Vt. 352, 95 A. 790 (1915).

§ 963. Powers.

A special administrator shall collect the goods, chattels, and credits of the deceased and preserve the same for the executor or administrator afterwards appointed and for that purpose may commence and maintain actions as an administrator and may sell perishable and other personal estate as the Probate Division of the Superior Court orders sold and may allow or deny claims against the estate as otherwise provided by law.

Amended 1985, No. 144 (Adj. Sess.), § 52; 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011; 2017, No. 195 (Adj. Sess.), § 5.

History

Source. V.S. 1947, § 2873. P.L. § 2797. G.L. § 3252. P.S. § 2778. V.S. § 2392. R.L. § 2082. G.S. 51, § 6. R.S. 47, § 6.

Amendments--2017 (Adj. Sess.) Made minor stylistic changes.

Amendments--2009 (Adj. Sess.) Substituted "probate division of the superior court" with "probate court."

Amendments--1985 (Adj. Sess.). Section amended generally.

ANNOTATIONS

1. Claims against estate.

Special administrator had no authority to compound a disputed claim, but if he did so in good faith, and those interested in the estate were present upon settlement of his account and acquiesced in his action, they would be estopped from afterwards setting up his want of authority. Foster's Executrix v. Stone, 67 Vt. 336, 31 A. 841 (1894).

§ 964. Liability for debts.

A special administrator shall not be liable to an action by a creditor or to pay any debts of the deceased. With the consent of the Probate Division of the Superior Court, he or she may pay the expenses of the last sickness and the funeral expenses of the deceased and any bills against the estate of the deceased of his or her own contracting.

Amended 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011; 2017, No. 195 (Adj. Sess.), § 5.

History

Source. V.S. 1947, § 2874. P.L. § 2798. 1929, No. 44 , § 1. G.L. § 3253. P.S. § 2779. V.S. § 2393. R.L. § 2083. G.S. 51, § 7. R.S. 47, § 7.

Amendments--2017 (Adj. Sess.). Substituted "A" for "Such" preceding "special administrator".

Amendments--2009 (Adj. Sess.) Substituted "probate division of the superior court" for "probate court."

§ 965. Bond.

Before entering upon the duties of his or her trust, a special administrator shall give a bond as the court directs, conditioned that he or she will make and return a true inventory of the goods, chattels, rights, credits, and effects of the deceased that come to his or her possession or knowledge, and that he or she will truly account for such as are received by him or her, when required by the Probate Division of the Superior Court, and will deliver the same to the person afterwards appointed executor or administrator or to a person authorized to receive the same.

Amended 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011; 2017, No. 195 (Adj. Sess.), § 5.

History

Source. V.S. 1947, § 2875. P.L. § 2799. G.L. § 3254. P.S. § 2780. V.S. § 2394. R.L. § 2084. G.S. 51, § 8. R.S. 47, § 8.

Amendments--2017 (Adj. Sess.). Substituted "a" for "such" preceding "special".

Amendments--2009 (Adj. Sess.) Substituted "probate division of the superior court" for "probate court."

Cross References

Cross references. Probate bonds generally, see § 2101 et seq. of this title.

ANNOTATIONS

1. Termination of liability.

Surety on bond of special administrator remains liable until trust is terminated and he has rendered his final account, unless discharged as provided by § 2105 of this title. American Surety Co. v. Gaskill's Administrator, 85 Vt. 358, 82 A. 218 (1912).

§ 966. Powers to cease, when.

Upon granting letters testamentary or of administration on the estate of the deceased, the powers of the special administrator shall cease. He or she shall forthwith deliver to the executor or administrator the goods, chattels, monies, and effects of the deceased in his or her hands, and the executor or administrator may prosecute to final judgment actions commenced by the special administrator.

Amended 2017, No. 195 (Adj. Sess.), § 5.

History

Source. V.S. 1947, § 2876. P.L. § 2800. G.L. § 3255. P.S. § 2781. V.S. § 2395. R.L. § 2085. G.S. 51, § 9. R.S. 47, § 9.

Amendments--2017 (Adj. Sess.). Substituted "the" for "such" preceding "special administrator" and "monies," for "moneys" following "chattels".

ANNOTATIONS

1. Termination of trust.

Where a special administrator is not otherwise connected with the administration, he cannot relieve himself of trust by any turning over of property before appointment of an executor or administrator, and where special administrator is also named in will as executor, final establishment of the will does not in itself terminate trust as special administrator. American Surety Co. v. Gaskill's Administrator, 85 Vt. 358, 82 A. 218 (1912).

CHAPTER 63. INVENTORY, APPRAISAL, AND ACCOUNTS

Sec.

History

Applicability of 2017 (Adj. Sess.) amendment. 2017, No. 195 (Adj. Sess.), § 19 provides: "This act [which amended this chapter] shall take effect on July 1, 2018 and shall apply to wills executed or offered for admission on or after that date."

§ 1051. Inventory.

Within 60 days after appointment, an executor or administrator, who is not a special administrator or a successor to another representative who has previously discharged this duty, shall prepare an inventory of property owned by the decedent at the time of death, listing it with reasonable detail, and indicating as to each listed item, its fair market value as of the date of the decedent's death, and the type and amount of any lien or encumbrance that may exist with reference to any item. The executor or administrator shall file the original of the inventory with the Probate Division of the Superior Court, and shall serve copies as provided by the Rules of Probate Procedure. The time for filing the inventory may be extended by the court for good cause.

Amended 1975, No. 240 (Adj. Sess.), § 2; 1985, No. 144 (Adj. Sess.), § 53; 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011; 2017, No. 195 (Adj. Sess.), § 6.

History

Source. V.S. 1947, § 2881. P.L. § 2805. G.L. § 3260. P.S. § 2786. 1896, No. 41 , § 2. V.S. § 2400. R.L. § 2090. G.S. 52, § 1. R.S. 48, § 1. 1821, p. 44. R. 1797, p. 217, § 18. R. 1797, p. 221, § 26. R. 1787, p. 51.

Amendments--2017 (Adj. Sess.). Substituted "60" for "30" preceding "days" in the first sentence and "good cause" for "period not to exceed a total of 90 days" following "court for" in the third sentence.

Amendments--2009 (Adj. Sess.) Substituted "probate division of the superior court" for "probate court."

Amendments--1985 (Adj. Sess.). Deleted "his" preceding "appointment" and following "time of" in the first sentence, substituted "serve copies as provided by the rules of probate procedure" for "mail a copy of the inventory to interested persons who request it" following "court, and shall" at the end of the second sentence, and deleted "probate" preceding "court" in the third sentence.

Amendments--1975 (Adj. Sess.). Section amended generally.

Cross References

Cross references. Articles not included in inventory, see § 1054 of this title.

Supplementary inventory, see § 1052(b) of this title.

ANNOTATIONS

Analysis

1. Items in inventory.

Where deceased had conveyed real estate to daughter, so that latter became and remained sole and absolute owner thereof, such real estate had no proper place in "a true inventory" of estate of deceased. Trask v. Walker's Estate, 100 Vt. 51, 134 A. 853 (1926).

2. Inventory as evidence.

In view of requirement that executor shall within specified period file inventory of goods, chattels, rights, and credits of deceased coming to his "possession or knowledge," such inventory, standing alone, was not conclusive as to the executor's possession of assets shown by inventory at date thereof. Reed v. Hendee, 100 Vt. 351, 137 A. 329 (1927).

Inventory of estate of intestate by committee duly appointed to appraise same, and certified under oath, was legitimate evidence upon which probate court could determine question of assignment to widow or minor children for their support. Boyden v. Ward, 38 Vt. 628 (1866).

Cited. In re Estate of Neil, 152 Vt. 124, 565 A.2d 1309 (1989).

§ 1052. Appraisers.

The executor or administrator may employ one or more qualified and disinterested appraisers to assist in ascertaining the fair market value as of the date of the decedent's death of any assets the value of which may be subject to reasonable doubt. The names and addresses of any appraisers shall be indicated on the inventory with the item or items appraised.

Amended 1975, No. 240 (Adj. Sess.), § 3; 1985, No. 144 (Adj. Sess.), § 54; 2017, No. 195 (Adj. Sess.), § 6.

History

Source. V.S. 1947, § 2882. P.L. § 2806. G.L. § 3261. P.S. § 2787. V.S. § 2401. R.L. R.L. § 2091. G.S. 52, § 2. R.S. 48, § 2. 1821, p. 44. R. 1797, p. 217, § 18. R. 1787, p. 51.

Amendments--2017 (Adj. Sess.). Section amended generally.

Amendments--1985 (Adj. Sess.). Subsec. (a): Deleted "him" following "assist" in the first sentence and "he" following "items" in the third sentence.

Subsec. (b): Deleted "he, shall make" following "misleading", inserted "shall be made" preceding "showing" and substituted "serve copies of it as provided by the rules of probate procedure" for "mail copies thereof, to all interested persons to whom a copy of the original inventory was furnished, and to any other persons interested in the new information, who request it" following "court and".

Subsec. (c): Substituted "motion" for "petition" preceding "filed" and deleted "in the probate court" thereafter and substituted "any" for "such" following "omitted from".

Amendments--1975 (Adj. Sess.). Section amended generally.

§ 1053. Supplemental inventory.

  1. If the executor or administrator learns of the existence of any property not included in the original inventory or learns that the value or description indicated in the original inventory for any item is erroneous or misleading, the executor or administrator shall:
    1. make a supplementary inventory or appraisal showing the market value as of the date of the decedent's death of the new item or the revised market value or descriptions, and the appraisals or other data relied upon, if any; and
    2. file the supplementary inventory or appraisal with the court and serve copies of it as provided by the Rules of Probate Procedure.
  2. Upon motion filed within 30 days after the filing of an original or supplemental inventory by any creditor having a claim of more than $1,000.00, or by any heir, devisee, or legatee entitled to property or cash of value of more than $500.00 on distribution of the estate, the court shall hold a hearing and may appoint one or more special appraisers to reappraise any item of property reported in the inventory or to appraise any property omitted from the inventory.

    Added 2017, No. 195 (Adj. Sess.), § 6.

History

Former § 1053. Former § 1053, relating to duties of appraisers, was derived from V.S. 1947, § 2883; P.L. § 2807; G.L. § 3262; P.S. § 2788; V.S. § 2402; R.L. § 2092; G.S. 52, § 3; R.S. 48, § 3; 1821, p. 44; R. 1797, p. 217, § 18; R. 1787, p. 51. This section was previously repealed by 1975, No. 240 (Adj. Sess.), § 12.

§ 1054. Assets not inventoried.

Wearing apparel of the deceased or any other member of the household, and provisions and other articles to be consumed or used in the subsistence of the household, shall not be considered as assets of the estate unless, after hearing upon motion, the court finds that an item has intrinsic value in addition to its value for wear or subsistence, or that its inclusion in inventory would otherwise benefit the estate.

Amended 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011; 2017, No. 195 (Adj. Sess.), § 6.

History

Source. V.S. 1947, § 2884. 1947, No. 202 , § 2907. P.L. § 2808. G.L. § 3263. P.S. § 2789. V.S. § 2403. R.L. § 2093. G.S. 52, § 4. R.S. 48, § 4. 1838, No. 18 . 1821, p. 46. R. 1787, p. 59.

Amendments--2017 (Adj. Sess.). Section amended generally.

Amendments--2009 (Adj. Sess.) Introductory paragraph: Substituted "probate division of the superior court" for "probate court."

ANNOTATIONS

1. Wardrobe.

If it did not otherwise appear, legal presumption was that wife's wardrobe was furnished by husband, it being his duty to furnish it, and on her decease it belonged to husband and was no part of wife's estate. In re Hall's Estate, 70 Vt. 458, 41 A. 508 (1898).

§ 1055. Accounts of executors and administrators; time of rendering; examination.

An executor or administrator shall render an account of his or her administration within one year from the time of receiving letters testamentary or of administration, and annually thereafter, or otherwise as ordered by the Probate Division of Superior Court until the estate is wholly settled. The fiduciary may be examined on oath upon any matter relating to the account.

Amended 2017, No. 195 (Adj. Sess.), § 6.

History

Source. V.S. 1947, § 2885. 1947, No. 202 , § 2908. P.L. § 2809. 1923, No. 53 , § 1. 1919, No. 88 , § 1. G.L. § 3264. P.S. § 2790. V.S. § 2404. R.L. § 2094. G.S. 54, § 9. R.S. 50, § 9.

Amendments--2017 (Adj. Sess.). Section amended generally.

Cross References

Cross references. Form of accounts, see Rule 66(c), Vermont Rules of Probate Procedure.

ANNOTATIONS

Analysis

1. Concealment of property.

Where there was concealment of property by executrix, probate court could grant complete relief, even after final account had been settled. Davis v. Eastman, 66 Vt. 651, 30 A. 1 (1894).

2. Account as evidence.

Administrator's interim accounting filed in probate court is a declaration in writing made in discharge of the administrator's duties as legal representative of the estate and, as such, its admission against the interest of the estate should have been received in evidence in a subsequent chancery proceeding. Shearer v. Welch, 126 Vt. 106, 223 A.2d 552 (1966).

Cited. In re Estate of Everett, 114 Vt. 256, 44 A.2d 149 (1945).

§ 1056. Liability on bond for neglect.

When an executor or administrator, being duly cited by the Probate Division of the Superior Court, neglects to render a required account, the fiduciary shall be liable on the fiduciary's bond for the damages which accrue.

Amended 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011; 2017, No. 195 (Adj. Sess.), § 6.

History

Source. V.S. 1947, § 2886. P.L. § 2810. G.L. § 3265. P.S. § 2791. V.S. § 2405. R.L. § 2095. G.S. 54, § 12. R.S. 50, § 11.

Amendments--2017 (Adj. Sess.). Substituted "a required" for "his or her" preceding "account," "the fiduciary" for "he or she" preceding "shall", and "the fiduciary's" for "his or her" preceding "bond."

Amendments--2009 (Adj. Sess.) Substituted "probate division of the superior court" for "probate court."

ANNOTATIONS

1. Basis of action on bond.

Decree in probate court that administrator ought to render his account was sufficient basis upon which to predicate a suit upon bond given to secure performance of orders of the probate court. French v. Winsor, 24 Vt. 402 (1852).

§ 1057. For what to account.

The accounting of the executor or administrator shall:

  1. be done on a cash basis;
  2. include the balance at the beginning of the period covered by the accounting, all receipts, all payments, and the balance at the end of the period covered by the accounting; and
  3. be prepared on forms provided by the court, or on any spreadsheet or generally accepted software format accepted by the court that provides the required information.

    Amended 2017, No. 195 (Adj. Sess.), § 6.

History

Source. V.S. 1947, § 2887. P.L. § 2811. G.L. § 3266. P.S. § 2792. V.S. § 2406. R.L. § 2096. G.S. 54, §§ 1, 2. R.S. 50, §§ 1, 2. 1821, p. 46. R. 1797, p. 218, § 19. R. 1797, p. 231, § 47. R. 1787, p. 53.

Amendments--2017 (Adj. Sess.). Rewrote section.

ANNOTATIONS

Analysis

1. Account for administration in another state.

The principal administration being in this state, and the same person being also administrator in New Hampshire, and not having closed his administration there for a long time, shall be held accountable here for monies he received in New Hampshire before he took administration there and also for monies received afterwards, for property which he had not inventoried there, and for which he had not accounted there. Woods v. Creditors, 4 Vt. 256 (1832).

2. Disallowed claims.

An administrator could not charge in his account for payment of a claim disallowed by commissioners, after right of appeal had lapsed, nor could he charge for payment of a claim not presented to commissioners, if claimant had no further right to petition probate court to open the commission. French v. Winsor, 24 Vt. 402 (1852).

3. Payment by personal note.

Administrator who gave his personal note in payment of a claim against estate was entitled to a credit in his account for amount thereof. Walworth's Estate v. Bartholomew's Estate, 76 Vt. 1, 56 A. 101 (1903).

Since commissioner was warranted in assuming that administrator had given his personal obligation for a distributive share, credit to administrator for amount thereof was properly allowed. Walworth's Estate v. Bartholomew's Estate, 76 Vt. 1, 56 A. 101 (1903).

4. Interest.

Administrator should be charged with interest received by him on interest-bearing notes. Probate Court v. Winch, 57 Vt. 282 (1884).

An administrator should be charged with interest on monies he received for estate, during time of any delay of a settlement of estate, or when he could fairly be presumed to have used money, or had safe opportunities to have kept same at interest. Woods v. Creditors, 4 Vt. 256 (1832).

5. Sale of property.

Administrator was chargeable with full cash price for which property of estate was sold, though through error a less sum was actually received. Carpenter v. Stowe's Estate, 75 Vt. 114, 53 A. 360 (1902).

6. Payment of legacies.

It was negligence on part of executor to deliver a $1000 U.S. bond, worth at time in all markets of country $1200, to each of three legatees in payment of a $1000 legacy to each, and he was liable for the loss; and this was so although the executor obtained the value placed upon the bonds by the appraisers, and was told by the probate court that he could so deliver them to the legatees for what they were appraised. Spaulding v. Wakefield's Estate, 53 Vt. 660 (1881).

7. Fund created for payment of expenses.

Executor was liable for premium and interest on an $800 bond deposited in bank to create a fund upon which to draw to pay expenses of settling estate; as it was not found by commissioner that creation of such a fund was necessary. Spaulding v. Wakefield's Estate, 53 Vt. 660 (1881).

8. Commingling of funds.

If trustee commingles trust funds with his own and loss happens by transaction, he must make good entire loss to trust fund, both as to principal and interest. In re Hodges' Estate, 66 Vt. 70, 28 A. 663 (1893).

When a financial agent or attorney mixed money of his principal with his own by depositing it in his general bank account, and drew it out and used it in his own business, it was presumed that he had gained a benefit, and on failure to show how much he had derived from the use, he was chargeable for interest. Blodgett's Estate v. Converse's Estate, 60 Vt. 410, 15 A. 109 (1888).

An executor was chargeable only with simple interest, although he mingled and loaned funds of estate with his own, when he did so in good faith, disclosing all profits, and, without fault or want of prudence, suffered some losses, but claimed no deduction therefor and nothing for his services, when such interest exceeded what he actually received on funds, and funds had not been used in business, trade or speculation. Estate of Perkins v. Hollister, 59 Vt. 348, 7 A. 605 (1887).

9. Negligence.

An executor was chargeable in his administration account with assets of estate which had been lost through his negligence. In re Hall's Estate, 70 Vt. 458, 41 A. 508 (1898).

10. Liability for loss caused by agent.

Delay in recovering money of agent was negligence; and, although the masters found that administrator acted in good faith, on his best judgment, and with ordinary care and prudence, he was liable for the loss, because no actual necessity was shown for employing agent, and no sufficient cause for allowing agent to hold the money four years without suit to recover it. McCloskey v. Gleason, 56 Vt. 264 (1883).

An administrator is liable for loss of avails of a note, when loss was caused by misappropriation of funds by his agent appointed by him to collect same, unless he proves, (a) that at the time he employed agent there was an actual necessity for such employment; (b) that he used the best accredited agencies; (c) that, if agent has used money collected, there was no delay in recovering it of him; (d) that in all respects he has exercised the diligence, care and prudence which a prudent man would under like circumstances; and burden of proof is on administrator. McCloskey v. Gleason, 56 Vt. 264 (1883).

11. Evidence.

In settlement of trustee's account trustee himself was a competent witness to all matters touching management of trust fund or disposal of it or its income. In re Hodges' Estate, 66 Vt. 70, 28 A. 663 (1893).

§ 1058. Not to gain or lose by increase or decrease in value.

An executor or administrator shall not profit by the increase, nor suffer loss by the decrease or destruction, without the fiduciary's fault, of any part of the estate. The executor or administrator shall account for any gain or loss incurred when any property is sold for more or less than the inventory value.

Amended 2017, No. 195 (Adj. Sess.), § 6.

History

Source. V.S. 1947, § 2888. P.L. § 2812. G.L. § 3267. P.S. § 2793. V.S. § 2407. R.L. § 2097. G.S. 54, § 3. R.S. 50, § 3.

Amendments--2017 (Adj. Sess.). Section amended generally.

§§ 1059, 1060. Repealed. 2017, No. 195 (Adj. Sess.), § 6.

History

Former §§ 1059, 1060. Former § 1059, relating to not gaining or losing increase or decrease in value, was derived from V.S. 1947, § 2888; P.L. § 2812; G.L. § 3267; P.S. § 2793; V.S. § 2407; R.L. § 2097; G.S. 54, § 3; R.S. 50, § 3.

Former § 1060, relating to accountability for proceeds of realty, was derived from V.S. 1947, § 2890; P.L. § 2814; G.L. § 3269; P.S. § 2795; V.S. § 2409; R.L. § 2099; G.S. 52, § 33; R.S. 48, § 29.

§ 1061. When not accountable for debts due.

An executor or administrator shall not be accountable for debts due the deceased if it appears that they remain uncollected without his or her fault.

Amended 2017, No. 195 (Adj. Sess.), § 6.

History

Source. V.S. 1947, § 2891. P.L. § 2815. G.L. § 3270. P.S. § 2796. V.S. § 2410. R.L. § 2100. G.S. 54, § 6. R.S. 50, § 6.

Amendments--2017 (Adj. Sess.). Made minor stylistic changes.

§ 1062. Use by executor or administrator.

If an executor or administrator uses or occupies any asset of the estate, the executor or administrator shall account for the use or occupancy upon agreement of the interested parties. If the parties do not agree upon the amount to be allowed, the court shall determine the proper amount, with the assistance of a master at the court's discretion.

Amended 1985, No. 144 (Adj. Sess.), § 55; 2017, No. 195 (Adj. Sess.), § 6.

History

Source. V.S. 1947, § 2892. P.L. § 2816. G.L. § 3271. P.S. § 2797. V.S. § 2411. R.L. § 2101. G.S. 54, § 7. R.S. 50, § 7.

Amendments--2017 (Adj. Sess.). Rewrote section.

Amendments--1985 (Adj. Sess.). Amended section generally.

Cross References

Cross references. Masters, see Rule 53, V.R.P.P.

ANNOTATIONS

1. Rent.

Where executor collected rents of real estate specifically devised, for space of one year from death of testator, he should account for same as a part of estate, although there was other personalty sufficient to pay debts and expenses of settlement. Allen v. Tarbell's Estate, 65 Vt. 150, 26 A. 65 (1893).

§ 1063. Accountable for losses by neglect.

When an executor or administrator neglects or unreasonably delays to raise money by collecting the debts or selling the real or personal estate of the deceased, or neglects to pay over the money the fiduciary has in his or her hands, and the value of the estate is thereby lessened, or unnecessary cost or interest accrues, or the persons interested suffer loss, the same shall be deemed waste, and the damages sustained may be charged and allowed against the fiduciary in the fiduciary's account or the fiduciary shall be liable for the damages on the fiduciary's bond.

Amended 2017, No. 195 (Adj. Sess.), § 6.

History

Source. V.S. 1947, § 2893. P.L. § 2817. G.L. § 3272. P.S. § 2798. V.S. § 2412. R.L. § 2102. G.S. 54, § 8. R.S. 50, § 8. 1821, p. 49. R. 1797, p. 233, § 53.

Amendments--2017 (Adj. Sess.). Section amended generally.

ANNOTATIONS

Analysis

1. Good faith.

If an administrator, after a thorough investigation, honestly though erroneously believed that certain notes of the intestate were given away by him before his death, and for this reason did not attempt to obtain them or their proceeds, he would not be liable for the amount so lost to the estate. Holmes v. Bridgman, 37 Vt. 28 (1864).

2. Rent.

Where an executor agreed with his wife, who was a residuary legatee under will, that she should take in payment of her legacy a certain house and lot, property of estate but occupied by executor and his family, and in fulfillment of that agreement he conveyed property to his wife's sister, who was to deed it to his wife, but did not do so till about eleven years thereafter when she also filed her deed for record, and during those years estate incurred no expense in respect of property, executor was properly charged with rental thereof only to date of conveyance to his wife's sister, no claim being made that it was not advantageous to the estate thus to pay wife's legacy. In re Lane's Estate, 79 Vt. 323, 65 A. 102 (1906).

3. Sale of property.

Administrator was to be charged with a loss in sale of real estate which he might have saved by prudent management; especially when he was interested in last bid and purchase. Woods v. Creditors, 4 Vt. 256 (1832).

4. Collusion.

If an administrator neglects to seek redress from persons wrongfully withholding property of estate which he represents, being deterred therefrom by wrongdoers' giving him a bond of indemnity against all acts or omissions to act as administrator, he is guilty of collusion with them, and liable for amount lost to estate by his bad faith. Holmes v. Bridgman, 37 Vt. 28 (1864).

§ 1064. Costs to be allowed.

The amount paid by an executor or administrator for costs awarded against him or her shall be allowed in the fiduciary account, unless it appears that the action or proceeding in which the costs are taxed was prosecuted or resisted without just cause.

Amended 2017, No. 195 (Adj. Sess.), § 6.

History

Source. V.S. 1947, § 2894. P.L. § 2818. G.L. § 3273. P.S. § 2799. V.S. § 2413. R.L. § 2103. G.S. 54, § 13. R.S. 50, § 12.

Amendments--2017 (Adj. Sess.). Inserted "executor or" preceding "administrator" and substituted "the fiduciary" for "his or her administration" preceding "account".

Cross References

Cross references. Costs not to be taxed against estate, see § 1418 of this title.

Costs on appeal, see § 2567 of Title 12.

Taxation of costs in probate proceedings generally, see Rule 54, Vermont Rules of Probate Procedure.

ANNOTATIONS

Analysis

1. Construction with other laws.

Provision of section 2567 of Title 12, that costs taxed against executor or administrator shall be allowed to him in his administration account, was not to be construed literally, but was controlled by provision of this section that such costs shall be allowed unless it appears that action or proceeding in which they were taxed was prosecuted or resisted without just cause. In re Estate of Brace, 109 Vt. 360, 196 A. 742 (1938).

2. Appeal.

Supreme court had no discretion in allowance of costs accruing in county court upon trial of an appeal from probate court. Bliss v. Little's Estate, 64 Vt. 133, 23 A. 725 (1891).

3. Evidence.

Administrator should be allowed for his expenditures in a lawsuit in which he was unsuccessful, if he acted in good faith, and with reasonable prudence - and whether he did so or not, must ordinarily depend upon facts in each particular case. Wilson v. Bates, 28 Vt. 765 (1856).

§ 1065. Fees and expenses.

An executor or administrator shall be allowed necessary expenses in the care, management, and settlement of the estate and reasonable fees for services. When, by will, the deceased makes some other provisions for compensation to the executor, that shall be a full satisfaction for his or her services, unless, by a written instrument filed in the Probate Division of the Superior Court, the executor renounces all claim to the compensation provided by the will, or unless otherwise ordered by the court.

Amended 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011; 2017, No. 195 (Adj. Sess.), § 6.

History

Source. V.S. 1947, § 2895. P.L. § 2819. G.L. § 3274. P.S. § 2800. V.S. § 2414. R.L. § 2104. G.S. 54, § 11. R.S. 50, § 10.

Amendments--2017 (Adj. Sess.). Section amended generally.

Amendments--2009 (Adj. Sess.) Substituted "probate division of the superior court" for "probate court."

ANNOTATIONS

Analysis

1. Special administrator.

Special administrator held estate in trust for whomsoever was entitled to it, and was himself entitled to be compensated from the fund. Powell v. Foster's Estate, 71 Vt. 160, 44 A. 96 (1899).

2. Management of estate.

Executor or administrator was entitled to an allowance against estate for his time and services in taking care of property of estate, so long as it remained under his management, and he was accountable for it in that capacity, although use of property was bequeathed to another, who during all the time had income of it. Richardson v. True, 28 Vt. 676 (1856).

3. Per diem.

Executor was entitled to statutory fee per diem although, in ignorance of law, he made his charges at a lower rate. In re Hall's Estate, 70 Vt. 458, 41 A. 508 (1898).

4. Employees.

In preservation and protection of a large estate, one who was executor and trustee had, on facts found in case, a right to employ another as clerk, agent and attorney at a reasonable annual salary and to be compensated for his disbursements and obligations in that behalf out of estate. Sowles v. Hall, 73 Vt. 55, 50 A. 550 (1901).

5. Law suit expenditures.

Administrator will be allowed his account for expenditures in a law suit, in which he fails to recover, when he acts in good faith, and with reasonable prudence; but he may press on a suit with so little prudence, and so little prospect of recovery, that he ought not to be allowed his costs. Woods v. Creditors, 4 Vt. 256 (1832).

6. Attorney's fees.

An administrator who had misappropriated to some extent funds of an estate could be allowed for counsel fees upon a final accounting in probate court, if necessity for such legal services did not arise from fact of misappropriation. Foster's Executrix v. Stone, 67 Vt. 336, 31 A. 841 (1894).

7. Agreement.

It was competent for all parties interested in an estate to agree with a proposed administrator that if he would accept appointment he would not be limited, in his charges for services, to statutory fees. Powell v. Foster's Estate, 71 Vt. 160, 44 A. 96 (1899).

Compensation agreement entered into by administrator and all parties interested in estate could be enforced by probate court upon settlement of administrator's account. Powell v. Foster's Estate, 71 Vt. 160, 44 A. 96 (1899).

8. Failure to comply with statutory requirements.

Failure of executor to comply with statutory requirements that he file his account within one year from receiving his letters testamentary, etc., should be considered in determining whether any, and if so, how much compensation shall be allowed him for his services; but such failure did not, in itself, operate as a bar to all compensation. In re Lane's Estate, 79 Vt. 323, 65 A. 102 (1906).

9. Commingling of funds.

As administrator mingled trust money with his own, he could be allowed nothing for his services in caring for same. McCloskey v. Gleason, 56 Vt. 264 (1883).

10. Maladministration.

An administrator should be allowed nothing for services rendered in maladministration of estate; but if his administration had been faithful for a certain period, he could be allowed for services during that period, although his subsequent administration was unfaithful. Foster's Executrix v. Stone, 67 Vt. 336, 31 A. 841 (1894).

11. Appeal.

Executor was not entitled in supreme court to insist upon allowance of his charges for expenses incurred in settlement of his account, having failed to except to disallowance of those charges by county court. In re Hall's Estate, 70 Vt. 458, 41 A. 508 (1898).

§ 1066. Verification; right of heir to be examined.

An accounting that is consented to by all interested parties shall be allowed without hearing unless the Probate Division of the Superior Court sets a hearing upon the accounting. At the hearing, the executor or administrator may be examined under oath by the court or interested parties. Interested parties may be examined under oath. An account shall not be rejected for de minimis discrepancies unless the court finds good cause to reject the account on that basis.

Amended 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011; 2017, No. 195 (Adj. Sess.), § 6.

History

Source. V.S. 1947, § 2896. P.L. § 2820. G.L. § 3275. P.S. § 2801. V.S. § 2415. R.L. § 2105. G.S. 54, § 10. 1856, No. 13 . 1850, No. 12 . 1846, No. 15 .

Amendments--2017 (Adj. Sess.). Rewrote section.

Amendments--2009 (Adj. Sess.) Substituted "probate division of the superior court" for "probate court."

ANNOTATIONS

1. Trustee as witness.

In settlement of trustee's account, trustee himself was a competent witness to all matters touching management of trust fund or disposal of it or its income. In re Hodges' Estate, 66 Vt. 70, 28 A. 663 (1893).

§ 1067. Notice of accounting.

Before an administration account of an executor or administrator is allowed, notice shall be given as provided by the Rules of Probate Procedure.

Amended 1975, No. 240 (Adj. Sess.), § 4; 1985, No. 144 (Adj. Sess.), § 56.

History

Source. V.S. 1947, § 2897. P.L. § 2821. G.L. § 3276. P.S. § 2802. V.S. § 2416. R.L. § 2106. G.S. 54, § 14. R.S. 50, § 13. 1821, p. 46. 1813, p. 101. R. 1797, p. 220, § 24. R. 1797, p. 233, § 51.

Amendments--1985 (Adj. Sess.). Section amended generally.

Amendments--1975 (Adj. Sess.). Section amended generally.

Cross References

Cross references. Accounts to be served on beneficiaries, see Rule 5.1, V.R.P.P.

Notice and service generally, see Rules 4 and 5, V.R.P.P.

Notice of hearing on account, see Rule 66(b), V.R.P.P.

ANNOTATIONS

Analysis

1. Sufficiency of notice by publication.

Notice by publication, in a small Vermont newspaper, of executor's final accounting, to alert a legatee whose out-of-state address was known, was not the best possible notice where personal notice was also allowed, was not reasonably calculated under all the circumstances to apprise interested parties of the pendency of the proceeding and afford them an opportunity to present objections, and could have resulted in a failure of due process. In re Estate of Duval, 133 Vt. 197, 332 A.2d 802 (1975).

Notice of order fixing date for final accounting of administrator and distribution of estate, by publication thereof in a specified weekly newspaper of the probate district having charge of the estate for three consecutive issues of such paper prior to date of hearing, was "public notice," and sufficient. In re Warner's Estate, 98 Vt. 254, 127 A. 362 (1925); Barber v. Chase, 101 Vt. 343, 143 A. 302 (1928).

2. Effect of insufficient notice.

Final decree of probate court allowing final account of executrix, having been made without compliance with section as to notice, was without force. Vermont-Peoples' National Bank v. Robbins' Estate, 105 Vt. 283, 166 A. 6 (1933).

§ 1068. Surety may intervene and appeal.

Upon the settlement of the account of an executor, administrator, or other person, a person liable as surety in respect to the account, upon motion, may intervene as a party and may appeal as provided in other cases of appeals from the decision of the Probate Division of the Superior Court. Before the appeal is allowed, the surety shall give a bond to secure the principal from damages and costs and to secure the intervening damages and costs to the adverse party.

Amended 1985, No. 144 (Adj. Sess.), § 57; 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011; 2017, No. 195 (Adj. Sess.), § 6.

History

Source. V.S. 1947, § 2898. P.L. § 2822. G.L. § 3277. P.S. § 2803. V.S. § 2417. R.L. § 2107. 1876, No. 84 .

Revision note. In the section heading, substituted "may intervene and" for "to be admitted as party; may" for purposes of conformity with the text of the section, as amended.

Deleted comma following "shall" in the second sentence to correct a grammatical error.

Amendments--2017 (Adj. Sess.). Substituted "Before" for "The surety in such case, before" and inserted "the surety" preceding "shall".

Amendments--2009 (Adj. Sess.) Substituted "probate division of the superior court" for "probate court."

Amendments--1985 (Adj. Sess.). Substituted "motion, may intervene" for "application, may be admitted" preceding "as a party" and deleted "to such accounting" thereafter in the first sentence and made other minor stylistic changes throughout the section.

Cross References

Cross references. Intervention generally, see Rule 24, V.R.P.P.

§ 1069. Waiver of final accounting.

If an estate has been open for at least six months and the remaining assets include no real estate, a final accounting may be waived if the executor or administrator files with the court:

  1. the fiduciary's verified representation that all claims and all other obligations of the estate have been satisfied;
  2. a schedule of remaining assets to be distributed;
  3. a schedule of proposed distribution;
  4. a waiver of a final accounting and consent to the proposed distribution by all interested parties; and
  5. a tax clearance from the Vermont Department of Taxes.

    Added 2017, No. 195 (Adj. Sess.), § 6.

CHAPTER 65. COMMISSIONERS AND ALLOWANCE OF CLAIMS

Sec.

§§ 1151-1171. Repealed. 1975, No. 240 (Adj. Sess.), § 12.

History

Former § 1151, relating to appointment of commissioners to adjust claims, was derived from V.S. 1947, § 2899; 1947, No. 202 , § 2922; P.L. § 2832; G.L. § 3288; P.S. § 2814; V.S. § 2426; R.L. § 2115; G.S. 53, § 1; R.S. 49, § 1; 1821, p. 63; R. 1797, p. 249, § 82; R. 1787, p. 58.

Former § 1152, relating to swearing of and administration of oaths by commissioners, was derived from V.S. 1947, § 2900; P.L. § 2833; G.L. § 3289; P.S. § 2815; V.S. § 2427; R.L. § 2116; G.S. 53, § 10; R.S. 49, § 9; 1827, No. 11 , § 7; 1821, p. 63.

Former § 1153, relating to jurisdiction of commissioners, was derived from V.S. 1947, § 2901; P.L. § 2834; G.L. § 3290; P.S. § 2816; V.S. § 2428; R.L. § 2117; G.S. 53, §§ 12, 13; R.S. 49, §§ 11, 12; 1821, p. 65 and amended by 1963, No. 151 .

Former § 1154, relating to notice of hearings, was derived from V.S. 1947, § 2902; P.L. § 2835; G.L. § 3291; P.S. § 2817; V.S. § 2429; R.L. § 2118; G.S. 53, § 3; R.S. 49, § 3; 1821, p. 63; R. 1797, p. 249, § 82; R. 1787, p. 58, and amended by 1967, No. 16 , § 2.

Former § 1155, relating to publication and posting of notice, was derived from V.S. 1947, § 2903; P.L. § 2836; G.L. § 3292; P.S. § 2818; V.S. § 2430; R.L. § 2119; G.S. 53, § 4; R.S. 49, § 3; 1832, p. 63; R. 1797, p. 249, § 82.

Former § 1156, relating to removal of commissioners and filling of vacancies, was derived from V.S. 1947, § 2904; P.L. § 2837; G.L. § 3293; P.S. § 2819; V.S. § 2431; R.L. § 2120; 1865, No. 18 ; G.S. 53, § 5; R.S. 49, § 4; 1821, p. 64.

Former § 1157, relating to limitation and extension of time for presenting claims, was derived from V.S. 1947, § 2905; P.L. § 2838; G.L. § 3294; P.S. § 2820; V.S. § 2432; R.L. § 2121; G.S. 53, §§ 6, 7; R.S. 49, §§ 5, 6; 1821, p. 64; R. 1797, p. 249, § 82; R. 1787, p. 58, and amended by 1967, No. 16 , § 1.

Former § 1158, relating to petitions for extension of time to present claims, was derived from V.S. 1947, § 2906; P.L. § 2839; 1939, No. 157 , § 2626; 1929 No. 45, §§ 1, 2; 1923, No. 54 , § 1; 1921, No. 78 ; G.L. § 3295; 1908, No. 72 ; P.S. § 2821; V.S. § 2433; R.L. § 2122; 1867, No. 39 ; G.S. 53, § 8; 1847, No. 36 ; 1845, No. 26 ; R.S. 49, § 7; 1821, p. 64; 1817, p. 92.

Former § 1159, relating to report of commissioners, was derived from V.S. 1947, § 2907; P.L. § 2840; G.L. § 3296; P.S. § 2822; 1904, No. 69 , § 1; V.S. § 2434; R.L. § 2123; G.S. 53, § 11; R.S. 49, § 10; 1821, p. 64; R. 1797, p. 249, § 82; R. 1787, p. 58.

Former § 1160, relating to notice of time of filing report, was derived from V.S. 1947, § 2908; P.L. § 2841; G.L. § 3297; P.S. § 2823; V.S. § 2435; R.L. § 2124; 1876, No. 86 .

Former § 1161, relating to claims barred, was derived from V.S. 1947, § 2909; 1947, No. 202 , § 2932; P.L. § 2824; G.L. § 3298; P.S. § 2824; V.S. § 2436; R.L. § 2125; G.S. 53, § 14; R.S. 49, § 13; 1821, p. 65; R. 1797, p. 250, § 83; R. 1787, p. 58, and amended by 1971, No. 185 (Adj. Sess.), § 173.

Former § 1162, relating to set-off, was derived from V.S. 1947, § 2910; P.L. § 2845; G.L. § 3301; P.S. § 2826; V.S. § 2438; R.L. § 2127; G.S. 53, § 9; R.S. 49, § 8; 1821, pp. 63, 65.

Former § 1163, relating to actions by executors and administrators, was derived from V.S. 1947, § 2911; P.L. § 2851; G.L. § 3306; P.S. § 2831; V.S. § 2443; R.L. § 2131; G.S. 53, § 17; R.S. 49, § 16, and amended by 1971, No. 185 (Adj. Sess.), § 174.

Former § 1164, relating to recommitment of erroneous reports of commissioners, was derived from V.S. 1947, § 2912; P.L. § 2843; G.L. § 3299; 1917, No. 254 , § 3251; 1915, No. 96 .

Former § 1165, relating to reopening commission on application of a person in military service, was derived from V.S. 1947, § 2913; P.L. § 2844; G.L. § 3300; P.S. § 2825; V.S. § 2437; R.L. § 2126; G.S. 57, § 24.

Former § 1166, relating to special administrators to defend against claims of executors or administrators, was derived from V.S. 1947, § 2914; P.L. § 2846; G.L. § 3302; P.S. § 2827; 1906, No. 43 , § 1; V.S. § 2439; 1892, No. 48 ; 1888, No. 83 .

Former § 1167, relating to presentment, hearing and appeal of claims by executors or administrators, was derived from V.S. 1947, § 2915; P.L. § 2847; 1933, No. 157 , § 2634; 1929, No. 43 .

Former § 1168, relating to liability of joint debtor for whole debt, was derived from V.S. 1947, § 2916; P.L. § 2848; G.L. § 3303; P.S. § 2882; V.S. § 2440; R.L. § 2128; G.S. 53, § 18; R.S. 49, § 17.

Former § 1169, relating to suits against executors or administrators after appointment of commissioners, was derived from V.S. 1947, § 2917; P.L. § 2849; G.L. § 3304; P.S. § 2829; V.S. § 2441; R.L. § 2129; G.S. 53, § 15; R.S. 49, § 14; 1821, pp. 51, 67; R. 1797, p. 248, § 81.

Former § 1170, relating to discontinuance of pending actions, was derived from V.S. 1947, § 2918; P.L. § 2850; G.L. § 3305; P.S. § 2830; V.S. § 2442; R.L. § 2130; G.S. 53, § 16; R.S. 49, § 15; 1821, pp. 49, 67; R. 1797, p. 236, § 58; R. 1797, p. 256, § 89.

Former § 1171, relating to venue of actions by executors or administrators, was derived from V.S. 1947, § 2919; P.L. § 2852; G.L. § 3307; P.S. § 2832; V.S. § 2444; 1888, No. 49 .

CHAPTER 66. SETTLEMENT OF CLAIMS

Sec.

Cross References

Cross references. Limitation on claims of creditors, see § 931 of this title.

Procedure for creditors' claims against decedents' estates generally, see Rule 64, Vermont Rules of Probate Procedure.

Recovery of estate conveyed by deceased to defraud creditors, see §§ 1554-1559 of this title.

ANNOTATIONS

1. Purpose.

This chapter limiting the presentation of claims against a decedent's estate is intended to advance the swift and orderly distribution of that estate, where that can be done without prejudicing the rights of the decedent's creditors; the objective is to assure creditors sufficient notice that the estate is being settled and fair opportunity to present their claims. Kusserow v. Blue Cross-Blue Shield Plan, 140 Vt. 328, 437 A.2d 1114 (1981).

§ 1201. Notice to creditors.

  1. The Probate Division of the Superior Court may issue an order excusing the executor or administrator from complying with the notice to creditors provisions of the Rules of Probate Procedure when it appears to the court that:
    1. there are no debts existing against the decedent; or
    2. that the debts against the decedent are all known to the executor or administrator and there are funds to pay them; or
    3. the value of the estate does not exceed the sum of $2,500.00 and is assigned for the support of the surviving spouse.
  2. If notice is not given because an order is entered as provided in subsection (a) of this section, any assets distributed by the administrator or executor will be subject to any claims later established, and sections 1202 and 1203 of this title shall apply, but the executors or administrators will not be liable to distributees for losses to them when required to reimburse creditors.

    Added 1975, No. 240 (Adj. Sess.), § 7; amended 1985, No. 144 (Adj. Sess.), § 58; 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011.

History

Revision note. In subsec. (b), substituted "subsection (a) of this section" for "subsection (a)" to conform reference to V.S.A. style.

Amendments--2009 (Adj. Sess.) Subsec. (a): Substituted "probate division of the superior court" for "probate court."

Amendments--1985 (Adj. Sess.). Section amended generally.

Cross References

Cross references. Notice generally, see Rule 4, V.R.P.P.

Notice to creditors of small estate proceedings, see Rule 80.3, V.R.P.P.

ANNOTATIONS

1. Construction.

Limitations period of tort action was not tolled by this section, where section added time to applicable statute of limitations only where notice was given to creditors under section, not where notice should have been given, tolling provision's purpose was to allow claimant opportunity to present and resolve claim without litigation, claimant had actual notice anyway, and there was no reason to give claimant more time where court had excused executor from giving notice. Martel v. Stafford, 157 Vt. 604, 603 A.2d 345 (1991).

Plaintiff tort claimant was considered a claimant or creditor for purposes of limitations statute, since statutory terminology clearly intended to cover tort claimants. Martel v. Stafford, 157 Vt. 604, 603 A.2d 345 (1991).

§ 1202. Statutes of limitations.

Unless an estate is insolvent, the executor or administrator, with the consent of all heirs, devisees, and legatees, may waive any defense of limitations available to the estate. If the defense is not waived, no claim which was barred by any statute of limitations at the time of the decedent's death shall be allowed or paid. The running of any statute of limitations measured from some event other than death and advertisement for claims against a decedent is suspended during the four months following the first publication of notice under section 1201 of this title but resumes thereafter as to claims not barred pursuant to the sections which follow. For purposes of any statute of limitations, the proper presentation of a claim under section 1204 of this title is equivalent to commencement of a proceeding on the claim.

Added 1975, No. 240 (Adj. Sess.), § 7.

ANNOTATIONS

1. Construction.

Letters sent by plaintiff's attorneys did not amount to "proper presentation of a claim" within meaning of this section, for purposes of complying with statute of limitations, where first letter related to possible conflict of interest rather than statement of claim and omitted basic facts about claim, second letter was not delivered to administratrix or filed with probate court, and neither letter would have put administratrix on notice that a claim was being filed against estate. Austin v. Garceau, 159 Vt. 628, 619 A.2d 441 (mem.) (1992).

Plaintiff tort claimant was considered a claimant or creditor for purposes of this section, since statutory terminology clearly intended to cover tort claimants. Martel v. Stafford, 157 Vt. 604, 603 A.2d 345 (1991).

Cited. King v. Federal Deposit Insurance Corp.,, 785 F. Supp. 58 (D. Vt. 1992).

§ 1203. Limitations on presentation of claims.

  1. All claims against a decedent's estate that arose before the death of the decedent, including claims of the State and any subdivision thereof, whether due or to become due, absolute or contingent, liquidated or unliquidated, founded on contract, tort, or other legal basis, except claims for the possession of or title to real estate and claims for injury to the person and damage to property suffered by the act or default of the deceased, if not barred earlier by other statute of limitations, are barred against the estate, the executor or administrator, and the heirs and devisees of the decedent, unless presented as follows:
    1. within four months after the date of the first publication of notice to creditors if notice is given in compliance with the Rules of Probate Procedure; provided, however, that claims barred by the nonclaim statute of the decedent's domicile before the first publication for claims in this State are also barred in this State;
    2. within one year after the decedent's death, if notice to creditors has not been published or otherwise given as provided by the Rules of Probate Procedure.
  2. All claims against a decedent's estate that arise at or after the death of the decedent, including claims of the State and any subdivision thereof, whether due or to become due, absolute or contingent, liquidated or unliquidated, founded on contract, tort, or other legal basis, are barred against the estate, the executor or administrator, and the heirs and devisees of the decedent, unless presented as follows:
    1. a claim based on a contract with the executor or administrator, within four months after performance by the executor or administrator is due;
    2. any other claim, within four months after it arises.
  3. Nothing in this section affects or prevents:
    1. any proceeding to enforce any mortgage, pledge, or other lien upon property of the estate;
    2. to the limits of the insurance protection only, any proceeding to establish liability of the decedent or the executor or administrator for which he or she is protected by liability insurance; or
    3. the enforcement of any tax liability.

      Added 1975, No. 240 (Adj. Sess.), § 7; amended 1985, No. 144 (Adj. Sess.), § 59; 2017, No. 195 (Adj. Sess.), § 6a; 2019, No. 77 , § 20, eff. June 19, 2019; 2019, No. 167 (Adj. Sess.), § 16, eff. October 7, 2020.

History

Amendments--2019 (Adj. Sess.) Subsec. (c): Deleted "or" following "estate" in subdiv. (1) and added "or" following "liability insurance" in subdiv. (2).

Amendments--2019. Subsec. (a): Substituted "that" for "which" near the beginning of the introductory paragraph, and inserted "however, that" preceding "claims barred by the nonclaim" in subdiv. (a)(1).

Amendments--2017 (Adj. Sess.). Subdiv. (a)(2): Substituted "one year" for "three years" in the beginning of the sentence.

Amendments--1985 (Adj. Sess.). Subdiv. (a)(1): Substituted "the rules of probate procedure" for "section 1201 of this title" following "compliance with".

Subdiv. (a)(2): Added "or otherwise given as provided by the rules of probate procedure" following "published".

Subdiv. (c)(2): Inserted "or she" following "he".

Applicability of 2017 (Adj. Sess.) amendment. 2017, No. 195 (Adj. Sess.), § 19 provides: "This act [which amended this section] shall take effect on July 1, 2018 and shall apply to wills executed or offered for admission on or after that date.

ANNOTATIONS

1. Time limit for presenting claims.

When an executrix fails to give notice, creditors holding claims which arose before the death of the decedent properly have a longer time period in which to submit them. Kusserow v. Blue Cross-Blue Shield Plan, 140 Vt. 328, 437 A.2d 1114 (1981).

When an executrix publishes notice to creditors in accordance with the statutorily mandated procedure, claims which arose before the death of the decedent must be presented to the estate for payment within four months. Kusserow v. Blue Cross-Blue Shield Plan, 140 Vt. 328, 437 A.2d 1114 (1981).

Cited. West v. Village of Morrisville, 563 F. Supp. 1101 (D. Vt. 1983), vacated, 728 F.2d 130 (2d Cir. 1984); In re STN Enterprises, 779 F.2d 901 (2d Cir. 1985); In re STN Enters., Inc., 73 B.R. 470 (Bankr. D. Vt. 1987); Martel v. Stafford, 157 Vt. 604, 603 A.2d 345 (1991).

§ 1204. Manner of presentation of claims.

Claims against a decedent's estate may be presented as follows:

  1. The claimant shall deliver to the executor or administrator a written statement of the claim indicating its basis, the name and address of the claimant, and the amount claimed, and shall file a copy of the claim with the Probate Division of the Superior Court.  The claim is deemed presented on the first to occur of receipt of the written statement of claim by the executor or administrator, or the filing of the copy of the claim with the court.  If a claim is not yet due, the date when it will become due shall be stated.  If the claim is contingent or unliquidated, the nature of the uncertainty shall be stated.  If the claim is secured, the security shall be described.  Failure to describe correctly the security, the nature of any uncertainty, and the due date of a claim not yet due does not invalidate the claim made.
  2. The claimant may commence a proceeding against the executor or administrator in any court where the executor or administrator may be subjected to jurisdiction, to obtain payment of the claim against the estate, but the commencement of the proceeding must occur within the time limited for presenting the claim.  No presentation of claim is required in regard to matters claimed in proceedings against the decedent that were pending at the time of death.
  3. If a claim is presented under subdivision (1) of this section, no proceeding thereon may be commenced more than 60 days after the executor or administrator has mailed a notice of disallowance; but, in the case of a claim that is not presently due or that is contingent or unliquidated, the executor or administrator may consent to an extension of the 60-day period, or to avoid injustice, the court, on motion, may order an extension of the 60-day period, but in no event shall the extension run beyond the applicable statute of limitations.

    Added 1975, No. 240 (Adj. Sess.), § 7; amended 1985, No. 144 (Adj. Sess.), § 60; 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011.

History

Revision note. In subdiv. (3), substituted "subdivision (1)" for "division (1)" to conform reference to V.S.A. style.

Amendments--2009 (Adj. Sess.) Subdiv. (1): Substituted "probate division of the superior court" for "probate court."

Amendments--1985 (Adj. Sess.). Subdiv. (1): Rewrote the first sentence, inserted "the copy of" preceding "the claim with the" and deleted "register of the" thereafter in the second sentence, and substituted "claim" for "presentation" preceding "made" at the end of the fifth sentence.

Subdiv. (2): Deleted "including small claims court" following "court" and substituted "the" for "his" following "payment of" in the first sentence and deleted "his" preceding "death" at the end of the second sentence.

Subdiv. (3): Substituted "motion" for "petition" following "court, on".

ANNOTATIONS

Analysis

1. Construction.

Letters sent by plaintiff's attorneys did not constitute proper presentation of claim as required by this section, and thus applicable statute of limitations was not met, where first letter related to possible conflict of interest rather than statement of claim and omitted basic facts about claim, second letter was not delivered to administratrix or filed with probate court, and neither letter would have put administratrix on notice that a claim was being filed against estate. Austin v. Garceau, 159 Vt. 628, 619 A.2d 441 (mem.) (1992).

2. Matters pending at time of decedent's death.

No presentation of claim is required in regard to matters claimed in proceedings against the decedent which were pending at the time of his death. Kusserow v. Blue Cross-Blue Shield Plan, 140 Vt. 328, 437 A.2d 1114 (1981).

Where a hospital lien arises and is perfected pursuant to statute prior to the death of a decedent, perfection of the lien constitutes proceedings against the decedent pending at the time of his death, and excuses any further presentation of the claim to the executrix of the estate. Kusserow v. Blue Cross-Blue Shield Plan, 140 Vt. 328, 437 A.2d 1114 (1981).

This section, which provides time limits for presentation of claims against estate which have not been presented for payment before, was inapplicable to hospital claim for payment for services rendered; hospital's claim, represented by a lien which it perfected prior to death of decedent, came within statutory exception to presentation authorized for matters claimed in proceedings against the decedent which were pending at the time of his death. Kusserow v. Blue Cross-Blue Shield Plan, 140 Vt. 328, 437 A.2d 1114 (1981).

Cited. In re STN Enterprises, 779 F.2d 901 (2d Cir. 1985); Knott v. Pratt, 158 Vt. 334, 609 A.2d 232 (1992).

§ 1205. Classification of claims.

  1. If the applicable assets of the estate are insufficient to pay all claims in full, the executor or administrator shall make payment in the following order:
    1. costs and expenses of administration;
    2. reasonable funeral, burial, and headstone expenses, and perpetual care, not to exceed $3,800.00 exclusive of governmental payments, and reasonable and necessary medical and hospital expenses of the last illness of the decedent, including compensation of persons attending him or her;
    3. wages due employees which have been earned within three months prior to the death of the decedent, not to exceed $300.00 to each claimant;
    4. all other claims; including the balance of wages due but unpaid under subdivision (3) of this subsection.
  2. No preference shall be given in the payment of any claim over any other claim of the same class, and a claim due and payable shall not be entitled to a preference over claims not due but the same shall be prorated if there are insufficient assets to satisfy all claims within the class.

    Added 1975, No. 240 (Adj. Sess.), § 7; amended 2003, No. 128 (Adj. Sess.), § 1, eff. May 24, 2004.

History

Revision note. In subdiv. (a)(4), substituted "subdivision (3)" for "division (3)" to conform reference to V.S.A. style.

Amendments--2003 (Adj. Sess.) Subdiv. (a)(2): Substituted "$3,800.00" for "$1,000.00".

Cross References

Cross references. Recovery of welfare payments as preferred claim, see § 122 of Title 33.

Annotations From Former § 1260

1. Expenses of administration.

Where probate court had previously adjudicated executor's right to compensation, only reasonableness and correctness of charges to be allowed the executor and his attorney would be determined by county court on appeal de novo from probate court order restricting amount of compensation recoverable by executor and his counsel. In re Estate of Bove, 127 Vt. 25, 238 A.2d 789 (1968).

2. Funeral expenses.

Although necessary funeral expenses are debts against estate, and, after paying necessary expenses of administration, are preferred above all other debts, their payment must be ordered and allowed by the probate court before they can be charged to estate. Baldwin v. Taplin, 113 Vt. 291, 34 A.2d 117 (1943).

3. Wages.

Any claims for wages which came within the provisions of this section but were in excess of the limitation specified, would, as to such excess, stand in the same category as debts due to other creditors. 1942-44 Op. Atty. Gen. 288.

§ 1206. Allowance of claims.

  1. As to claims presented in the manner described in section 1204 of this title within the time limit prescribed in section 1203 of this title, the executor or administrator shall, if a claim is disallowed, mail a notice to any claimant stating that the claim has been disallowed.  If, after allowing or disallowing a claim, the executor or administrator changes his or her decision concerning the claim, he or she shall notify the claimant.  The executor or administrator may not change a disallowance of a claim after the time for the claimant to file a petition for allowance or to commence a proceeding on the claim has run and the claim has been barred.  Every claim which is disallowed in whole or in part by the executor or administrator is barred so far as not allowed unless the claimant files a petition for allowance in the court or commences a proceeding against the executor or administrator not later than 60 days after the mailing of the notice of disallowance or partial allowance if the notice warns the claimant of the impending bar.  Failure of the executor or administrator to mail notice to a claimant of action on his claim for 60 days after the time for original presentation of the claim not otherwise barred has expired shall have the effect of allowance.
  2. Upon motion of the executor or administrator or petition of a claimant, the Probate Division of the Superior Court may allow in whole or in part any claim or claims timely presented. Notice in this proceeding shall be given as provided by the Rules of Probate Procedure.
  3. A judgment in a proceeding in another court against an executor or administrator to enforce a claim against a decedent's estate is an allowance of the claim.
  4. By agreement between a claimant and the executor or administrator, a claim may be referred to one or more arbitrators, chosen either by the claimant and the executor or administrator, or, if they so request, by the Probate Division of the Superior Court. The decision of the arbitrator shall be final and binding.
  5. Unless otherwise provided in any judgment in another court entered against the executor or administrator, allowed claims bear interest at the legal rate for the period commencing 60 days after the time for original presentation of claim has expired unless based on a contract making a provision for interest, in which case they bear interest in accordance with that provision.

    Added 1975, No. 240 (Adj. Sess.), § 7; amended 1985, No. 144 (Adj. Sess.), § 61; 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011.

History

Amendments--2009 (Adj. Sess.) Substituted "probate division of the superior court" for "probate court" in subsecs. (b) and (d).

Amendments--1985. (Adj. Sess.). Subsec. (a): Inserted "or her" following "his" and "or she" following "he" in the second sentence and inserted "not otherwise barred" preceding "has expired" and substituted "shall have" for "has" thereafter in the fifth sentence.

Subsec. (b): Amended generally.

ANNOTATIONS

Cited. In re STN Enterprises, 779 F.2d 901 (2d Cir. 1985); Knott v. Pratt, 158 Vt. 334, 609 A.2d 232 (1992).

§ 1207. Payment of claims.

  1. Upon the expiration of four months from the date of the first publication of the notice to creditors, the executor or administrator shall proceed to pay the claims allowed against the estate in the order of priority prescribed, after making provision for homestead, family, and support allowances, for claims already presented which have not yet been allowed or whose allowance has been appealed, and for unbarred claims which may yet be presented, including costs and expenses of administration.  By petition to the court in a proceeding for the purpose, a claimant whose claim has been allowed but not paid as provided herein may secure an order directing the executor or administrator to pay the claim to the extent that funds of the estate are available for the payment.
  2. The executor or administrator at any time may pay any just claim that has not been barred, with or without formal presentation, but he or she personally liable to any other claimant whose claim is allowed and who is injured by such payment if:
    1. the payment was made before the expiration of the time limit stated in subsection (a) of this section and the executor or administrator failed to require the payee to give adequate security for the refund of any of the payment necessary to pay other claimants; or
    2. the payment was made, due to the negligence or willful fault of the executor or administrator, in such manner as to deprive the injured claimant of his or her priority.

      Added 1975, No. 240 (Adj. Sess.), § 7.

Cross References

Cross references. Homestead interest of surviving spouse, see § 105 of Title 27.

Priority of claims, see § 1205 of this title.

§ 1208. Individual liability of executor or administrator.

  1. Unless otherwise provided in the contract, an executor or administrator is not individually liable on a contract properly entered into in his or her fiduciary capacity in the course of administration of the estate unless he or she fails to reveal his or her representative capacity and identify the estate in the contract.
  2. An executor or administrator is individually liable for obligations arising from ownership or control of the estate or for torts committed in the course of administration of the estate only if he or she is personally at fault.
  3. Claims based on contracts entered into by an executor or administrator in his or her fiduciary capacity, on obligations arising from ownership or control of the estate or on torts committed in the course of estate administration may be asserted against the estate by proceeding against the executor or administrator in his or her fiduciary capacity, whether or not the executor or administrator is individually liable therefor.
  4. Issues of liability as between the estate and the executor or administrator individually may be determined in a proceeding for that purpose in this court or a proceeding in a court of competent jurisdiction.

    Added 1975, No. 240 (Adj. Sess.), § 7; amended 1985, No. 144 (Adj. Sess.), § 62.

History

Revision note. In subsec. (a), inserted "or her" following "reveal his" for purposes of conformity with text of remainder of section, as amended.

Amendments--1985 (Adj. Sess.). Subsec. (a): Inserted "or her" preceding "fiduciary" and "or she" following "he".

Subsec. (b): Inserted "or she" following "he".

Subsec. (c): Inserted "or her" following "his" in two places.

Subsec. (d): Amended generally.

§ 1209. Secured claims.

Payment of a secured claim is upon the basis of the amount allowed if the creditor surrenders his or her security; otherwise payment is upon the basis of one of the following:

  1. if the creditor exhausts his or her security before receiving payment, unless precluded by other law upon the amount of the claim allowed less the fair value of the security; or
  2. if the creditor does not have the right to exhaust his or her security or has not done so, upon the amount of the claim allowed less the value of the security determined by converting it into money according to the terms of the agreement pursuant to which the security was delivered to the creditor, or by the creditor and executor or administrator by agreement, arbitration, compromise, or litigation.

    Added 1975, No. 240 (Adj. Sess.), § 7.

§ 1210. Claims not due and contingent or unliquidated claims.

  1. If a claim that will become due at a future time or a contingent or unliquidated claim becomes due or certain before the distribution of the estate, and if the claim has been allowed or established by a proceeding, it is paid in the same manner as presently due and absolute claims of the same class.
  2. In other cases the executor or administrator, or, on motion of the executor or administrator or the claimant, in a proceeding for the purpose, the Probate Division of the Superior Court, may provide for payment as follows:
    1. If the claimant consents, he or she may be paid the present or agreed value of the claim, taking any uncertainty into account.
    2. Arrangement for future payment, or possible payment, on the happening of the contingency or on liquidation may be made by creating a trust, giving a mortgage, obtaining a bond or security from a distributee, or otherwise.

      Added 1975, No. 240 (Adj. Sess.), § 7; amended 1985, No. 144 (Adj. Sess.), § 63; 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011.

History

Amendments--2009 (Adj. Sess.) Subsec. (b): Substituted "probate division of the superior court" for "probate court."

Amendments--1985 (Adj. Sess.). Subsec. (b): Substituted "motion" for "petition" following "or, on", deleted "special" preceding "proceeding", inserted "probate" preceding "court" and made other minor stylistic changes in the introductory paragraph and inserted "or she" following "he" in subdiv. (1).

ANNOTATIONS

Analysis

1. Contingent claim.

Town's concern that the sewer system of a subdivision developed by the decedent could malfunction and threaten the town's aquifer at some time in the future was essentially a concern about the possibility of a future claim arising and was not a contingent claim. Hayes v. Town of Manchester Water & Sewer Bds., 198 Vt. 92, 112 A.3d 742 (2014).

2. Trusts.

When there was an oral contract between the decedents, who developed a subdivision, and the homeowners in which the decedents agreed to maintain the roads, water system, and sewer system at their own expense until the infrastructure was dedicated to and accepted by the town, the homeowners had established a claim for which the trial court could establish a trust to ensure that funds were available to meet the continuing obligations of the decedents under the oral agreements. Hayes v. Mt. View Estates Homeowners Ass'n, 207 Vt. 293, 188 A.3d 678 (Apr. 20, 2018).

§ 1211. Counterclaims.

In allowing a claim, the executor or administrator may deduct any counterclaim which the estate has against the claimant. In determining a claim against an estate, a court shall reduce the amount allowed by the amount of any counterclaims and, if the counterclaims exceed the claim, render a judgment against the claimant in the amount of the excess. A counterclaim, liquidated or unliquidated, may arise from a transaction other than that upon which the claim is based. A counterclaim may give rise to relief exceeding in amount or different in kind from that sought in the claim.

Added 1975, No. 240 (Adj. Sess.), § 7.

§ 1212. Execution and levies prohibited.

No execution may issue upon nor may any levy be made against any property of the estate under any judgment against a decedent or an executor or administrator, but this section shall not be construed to prevent the enforcement of mortgages, pledges, or liens upon real or personal property in an appropriate proceeding.

Added 1975, No. 240 (Adj. Sess.), § 7.

§ 1213. Compromise of claims.

When a claim against the estate has been presented in any manner, the executor or administrator may, if it appears for the best interests of the estate, compromise the claim, whether due or not due, absolute or contingent, liquidated or unliquidated.

Added 1975, No. 240 (Adj. Sess.), § 7.

§ 1214. Encumbered assets.

If any assets of the estate are encumbered by mortgage, pledge, lien, or other security interest, the executor or administrator may, except as otherwise provided by will, pay the encumbrance or any part thereof, renew or extend any obligation secured by the encumbrance, or convey or transfer the assets to the creditor in satisfaction of his or her lien, in whole or in part, whether or not the holder of the encumbrance has filed a claim, if it appears to be for the best interests of the estate. Payment of an encumbrance does not increase the share of the distributee entitled to the encumbered assets unless the distributee is entitled to exoneration.

Added 1975, No. 240 (Adj. Sess.), § 7.

§ 1215. Administration in more than one state; duty of executor or administrator.

  1. All assets of estates being administered in this State are subject to all claims, allowances, and charges existing or established against the executor or administrator wherever appointed.
  2. If the estate either in this State or as a whole is insufficient to cover all family exemptions and allowances, determined by the law of the decedent's domicile, prior charges and claims, after satisfaction of the exemptions, allowances, and charges, each claimant whose claim has been allowed either in this State or elsewhere in administrations of which the executor or administrator is aware, is entitled to receive payment of an equal proportion of his or her claim.  If a preference or security in regard to a claim is allowed in another jurisdiction but not in this State, the creditor so benefited is to receive dividends from local assets only upon the balance of his or her claim after deducting the amount of the benefit.
  3. In case the family exemptions and allowances, prior charges and claims of the entire estate exceed the total value of the portions of the estate being administered separately, and this State is not the state of the decedent's last domicile, the claims allowed in this State shall be paid their proportion if local assets are adequate for the purpose, and the balance of local assets shall be transferred to the domiciliary executor or administrator.  If local assets are not sufficient to pay all claims allowed in this State the amount to which they are entitled, local assets shall be marshalled so that each claim allowed in this State is paid its proportion as far as possible, after taking into account all dividends on claims allowed in this State from assets in other jurisdictions.

    Added 1975, No. 240 (Adj. Sess.), § 7.

§ 1216. Final distribution to domiciliary representative.

The estate of a nonresident decedent being administered by an executor or administrator appointed in this State shall, if there is an executor or administrator of the decedent's domicile willing to receive it, be distributed to the domiciliary executor or administrator for the benefit of the successors of the decedent unless:

  1. by virtue of the decedent's will, if any, and applicable choice of law rules, the heirs, devisees, and legatees are identified pursuant to the local law of this State without reference to the local law of the decedent's domicile;
  2. the executor or administrator of this State, after reasonable inquiry, is unaware of the existence or identity of a domiciliary executor or administrator; or
  3. the court orders otherwise in a proceeding for a final decree of distribution.  In other cases, distribution of the estate of a decedent shall be made in accordance with the other sections of the chapter.

    Added 1975, No. 240 (Adj. Sess.), § 7.

CHAPTER 67. PAYMENT OF DEBTS AND EXPENSES

Sec.

§§ 1251-1273. Repealed. 1975, No. 240 (Adj. Sess.), § 12.

History

Former § 1251, relating to sale of realty when personalty was insufficient for payment of debts, was derived from V.S. 1947, § 2984; P.L. § 2917; 1933, No. 157 , § 2074; G.L. § 3367; P.S. § 2888; V.S. § 2495; R.L. § 2182; G.S. 52, § 5; R.S. 48, § 5; 1821, p. 46; R. 1797, p. 224, § 31; R. 1787, p. 57.

Former § 1252, relating to payment of debts according to provisions in will, was derived from V.S. 1947, § 2985; P.L. § 2918; G.L. § 3368; P.S. § 2889; V.S. § 2496; R.L. § 2183; G.S. 49, §§ 30, 31; R.S. 45, §§ 30, 31.

Former § 1253, relating to legacies and devises liable for debt, was derived from V.S. 1947, § 2986; 1947, No. 202 , § 3009; P.L. § 2919; G.L. § 3369; P.S. § 2890; V.S. § 2497; R.L. § 2184; G.S. 49, § 32; R.S. 45, § 32.

Former § 1254, relating to executor retaining possession of an estate until settlement of liability, was derived from V.S. 1947, § 2987; P.L. § 2920; G.L. § 3370; P.S. § 2891; V.S. § 2498; R.L. § 2185; G.S. 49, § 33; R.S. 45, § 33.

Former § 1255, relating to contribution, was derived from V.S. 1947, § 2988; P.L. § 2921; G.L. § 3371; P.S. § 2892; V.S. § 2499; R.L. § 2186; G.S. 49, § 34; R.S. 45, § 34.

Former § 1256, relating to when a contributor was insolvent or dead, was derived from V.S. 1947, § 2989; P.L. § 2922; G.L. § 3372; P.S. § 2893; V.S. § 2500; R.L. § 2187; G.S. 49, § 35; R.S. 45, § 35.

Former § 1257, relating to authority of court to fix contributors' shares and other remedies of claimants, was derived from V.S. 1947, § 2990; P.L. § 2923; G.L. § 3373; P.S. § 2894; V.S. § 2501; R.L. § 2188; G.S. 49, § 36; R.S. 45, § 36.

Former § 1258, relating to perpetual care of burial lots, was derived from V.S. 1947, § 2991; P.L. § 2924; G.L. § 3374; 1912, No. 104 .

Former § 1259, relating to payment of debts in full if estate was sufficient, was derived from V.S. 1947, § 2992; P.L. § 2925; G.L. § 3375; P.S. § 2895; V.S. § 2502; R.L. § 2189; G.S. 53, § 33; R.S. 49, § 31.

Former § 1260, relating to order of payment of debts if estate was insolvent, was derived from 1955, No. 162 ; V.S. 1947, § 2993; 1943, No. 30 , § 1; 1935, S., No. 7, § 1; 1935, No. 57 ; P.L. § 2926; G.L. § 3376; 1912, No. 103 ; P.S. § 2896; 1904, No. 70 , § 1; V.S. § 2503; R.L. § 2190; G.S. 53, § 34; R.S. 49, § 32; 1821, pp. 46, 69; R. 1797, p. 249, § 82; R. 1787, pp. 57, 58, and amended by 1961, No. 87 ; 1963, No. 187 ; 1967, No. 147 , § 12; 1973, No. 75 . The subject matter is now covered by § 1205 of this title.

Former § 1261, relating to how creditors were to take if estate was insolvent, was derived from V.S. 1947, § 2994; P.L. § 2927; G.L. § 3377; P.S. § 2897; V.S. § 2504; R.L. § 2191; G.S. 53, § 35; R.S. 49, § 33; R. 1797, p. 254, § 88; R. 1787, p. 58.

Former § 1262, relating to estates of insolvent nonresidents, was derived from V.S. 1947, § 2995; P.L. § 2928; G.L. § 3378; P.S. § 2898; V.S. § 2505; R.L. § 2192; G.S. 53, § 36; 1851, No. 20 , § 1.

Former § 1263, relating to claims proved out of state against insolvent residents' estates and reciprocity, was derived from V.S. 1947, § 2996; P.L. § 2929; G.L. § 3379; P.S. § 2899; V.S. § 2506; R.L. § 2193; G.S. 53, § 37; 1851, No. 20 , § 2.

Former § 1264, relating to order for payment of claims, was derived from V.S. 1947, § 2997; P.L. § 2930; G.L. § 3380; P.S. § 2900; V.S. § 2507; R.L. § 2194; G.S. 53, § 38; R.S. 49, § 34; 1821, p. 68; R. 1797, p. 254, § 87.

Former § 1265, relating to suspension of order for payment pending appeal from commissioners, was derived from V.S. 1947, § 2998; P.L. § 2931; G.L. § 3381; P.S. § 2901; V.S. § 2508; R.L. § 2195; G.S. 53, § 39; R.S. 49, § 35.

Former § 1266, relating to payment of settled claims, was derived from V.S. 1947, § 2999; P.L. § 2932; G.L. § 3382; P.S. § 2902; V.S. § 2509; R.L. § 2196; G.S. 53, § 40; R.S. 49, § 36.

Former § 1267, relating to subsequent distributions, was derived from V.S. 1947, § 3000; P.L. § 2933; G.L. § 3383; P.S. § 2903; V.S. § 2510; R.L. § 2197; G.S. 53, § 41; R.S. 49, § 37; 1821, p. 69; R. 1797, p. 254, § 88.

Former § 1268, relating to personal liability of executors and administrators, was derived from V.S. 1947, § 3001; P.L. § 2934; G.L. § 3384; P.S. § 2904; V.S. § 2511; R.L. § 2198; G.S. 53, § 42; R.S. 49, § 38; 1821, p. 67; R. 1797, p. 253, § 86.

Former § 1269, relating to time for paying debts and legacies, was derived from V.S. 1947, § 3002; P.L. § 2935; G.L. § 3385; P.S. § 2905; V.S. § 2512; R.L. § 2199; G.S. 53, §§ 29, 30; R.S. 49, §§ 27, 28; 1834, No. 4 , § 6; 1821, pp. 47, 68; R. 1797, p. 248, § 81; R. 1797, p. 254, § 87.

Former § 1270, relating to hearing on application to extend time for paying debts and legacies, was derived from V.S. 1947, § 3003; P.L. § 2936; G.L. § 3386; P.S. § 2906; V.S. § 2513; R.L. § 2200; G.S. 53, § 31; R.S. 49, § 29; 1834, No. 4 , § 6; 1821, p. 47.

Former § 1271, relating to extension of time for paying debts and legacies when an executor or administrator died and a new administrator appointed, was derived from V.S. 1947, § 3004; P.L. § 2937; G.L. § 3387; P.S. § 2907; V.S. § 2514; R.L. § 2201; G.S. 53, § 32; R.S. 49, § 30.

Former § 1272, relating to publication of notice of time appointed or limited for payment of debts, was derived from V.S. 1947, § 3005; P.L. § 2938; G.L. § 3388; P.S. § 2908; V.S. § 2515; R.L. § 2202; G.S. 53, § 43; R.S. 49, § 39; 1821, p. 68; R. 1797, p. 254, § 87.

Former § 1273, relating to claims barred when not demanded within two years from the time limited for payment of debts, was derived from V.S. 1947, § 3006; P.L. § 2939; G.L. § 3389; P.S. § 2909; V.S. § 2516; R.L. § 2203; G.S. 53, § 44; R.S. 49, § 40; 1821, p. 68; R. 1797, p. 254, § 87.

CHAPTER 69. CONTINGENT CLAIMS

Sec.

§§ 1331-1341. Repealed. 1975, No. 240 (Adj. Sess.), § 12.

History

Former § 1331, relating to presentation of contingent claims to commissioners or the probate court, was derived from V.S. 1947, § 3007; P.L § 2940; G.L. § 3390; P.S. § 2910; V.S. § 2517; R.L. § 2204; G.S. 53, § 45; R.S. 49, § 41.

Former § 1332, relating to retention of estate to pay contingent claim, was derived from V.S. 1947, § 3008; 1947, No. 202 , § 3031; P.L. § 2941; G.L. § 3391; P.S. § 2911; V.S. § 2518; R.L. § 2205; G.S. 53, § 46; R.S. 49, § 42.

Former § 1333, relating to allowance of claims which become absolute within two years, was derived from V.S. 1947, § 3009; P.L. § 2942; G.L. § 3392; P.S. § 2912; V.S. § 2519; R.L. § 2206; G.S. 53, § 47; R.S. 49, § 43.

Former § 1334, relating to payment of contingent claims and distribution of assets, was derived from V.S. 1947, § 3010; P.L. § 2943; G.L. § 3393; P.S. § 2913; V.S. § 2520; R.L. § 2207; G.S. 53, § 48; R.S. 49, § 44.

Former § 1335, relating to presentation of claims which accrued after the time limited for creditors to present their claims, was derived from V.S. 1947, § 3011; P.L. § 2944; G.L. § 3394; P.S. § 2914; V.S. § 2521; R.L. § 2208; G.S. 53, § 49; R.S. 49, § 45.

Former § 1336, relating to liability when an executor or administrator did not have sufficient assets to pay the whole claim, was derived from V.S. 1947, § 3012; P.L. 2945; G.L. § 3395; P.S. § 2915; V.S. § 2522; R.L. § 2209; G.S. 53, §§ 50, 52; R.S. 49, §§ 46, 48; 1821, p. 59.

Former § 1337, relating to nonjoinder of parties liable under section 1336 of this title, was derived from V.S. 1947, § 3013; P.L. § 2946; G.L. § 3396; P.S. § 2916; V.S. § 2523; R.L. § 2210; G.S. 53, § 53; R.S. 49, § 49.

Former § 1338, relating to jury trial in cases of contested liability, was derived from V.S. 1947, § 3014; 1947, No. 202 , § 3037; P.L. § 2947; G.L. § 3397; P.S. § 2917; V.S. § 2524; R.L. § 2211; G.S. 53, § 54; R.S. 49, § 50, and amended by 1971, No. 185 (Adj. Sess.). § 236.

Former § 1339, relating to liability of estate of heir, was derived from V.S. 1947, § 3015; 1947, No. 202 , § 3038; P.L. § 2948; G.L. § 3398; P.S. § 2918; V.S. § 2525; R.L. § 2212; G.S. 53, § 55; R.S. 49, § 51.

Former § 1340, relating to remedy of their paying more than his share, was derived from V.S. 1947, § 3016; P.L. § 2949; G.L. § 3399; P.S. § 2919; V.S. § 2526; R.L. § 2213; G.S. 53, § 56; R.S. 49, § 52.

Former § 1341, relating to liability of executor or administrator, was derived from V.S. 1947, § 3017; P.L. § 2950; G.L. § 3400; P.S. § 2920; V.S. § 2527; R.L. § 2214; G.S. 53, § 51; R.S. 49, § 47; 1821, p. 59.

CHAPTER 71. ACTIONS BY AND AGAINST EXECUTORS AND ADMINISTRATORS

SUBCHAPTER 1. GENERAL PROVISIONS

SUBCHAPTER 2. SURVIVAL OF CAUSES

SUBCHAPTER 3. WRONGFUL DEATH

History

Applicability of 2017 (Adj. Sess.) amendment. 2017, No. 195 (Adj. Sess.), § 19 provides: "This act [which amended this chapter] shall take effect on July 1, 2018 and shall apply to wills executed or offered for admission on or after that date."

Subchapter 1. General Provisions

§ 1401. Executor or administrator may sue and defend.

An executor or administrator may commence, prosecute, or defend, in the right of the deceased, actions that survive to the executor or administrator and are necessary for the recovery and protection of the property or rights of the deceased and may prosecute or defend the actions commenced in the lifetime of the deceased.

Amended 2017, No. 195 (Adj. Sess.), § 7.

History

Source. V.S. 1947, § 2920. P.L. § 2853. G.L. § 3308. P.S. § 2833. V.S. § 2445. R.L. § 2132. G.S. 52, § 9. R.S. 48, § 9. 1821, p. 50. 1804, p. 96. R. 1797, p. 108, § 73. 1791, p. 3.

Revision note. Deleted "in law or equity" following "deceased, actions" to conform reference to Rule 2, Vermont Rules of Civil Procedure, pursuant to 1971, No. 185 (Adj. Sess.), § 236(d). See note set out under § 219 of Title 4.

Amendments--2017 (Adj. Sess.). Substituted "the" for "such" preceding "executor" and "actions".

Cross References

Cross references. Actions for accounting by and against executors and administrators, see § 4251 et seq. of Title 12.

Executor or administrator as real party in interest, see Rule 17, Vermont Rules of Civil Procedure.

Limitation of actions by and against executors and administrators, see §§ 557 and 558 of Title 12.

Substitution of parties, see Rule 25, Vermont Rules of Civil Procedure.

Survival of actions, see § 1451 et seq. of this title.

ANNOTATIONS

Analysis

1. Action by sole heir barred.

No reason appearing why matter should not follow common course or regular administration, sole heir of intestate, though there were no creditors, could not maintain a bill in equity to reach the assets of decedent's estate; but suit must be brought by administrator. Mason v. Mason's Executors, 76 Vt. 287, 56 A. 1011 (1904).

2. Acquiescence of administrator as binding on minor.

Acquiescence of an administrator or guardian in a mistaken boundary line for true line did not bind heirs or wards while they remained minors. Burnell v. Malony, 36 Vt. 636 (1864).

3. Time as bar to action by administrator.

If administration upon estate of deceased person has been closed, and land surrendered to heirs, or if enough time has elapsed since death of intestate (in this case thirty years held to be sufficient) to show that lands are not required for purposes of administration, heirs or their grantees being in possession, cannot be disturbed by administrator. Cox v. Ingleston, 30 Vt. 258 (1858).

In ejectment against heir of an intestate where action was brought by administrator who was not appointed till sixteen years after intestate's death, and who did not show that there were any debts outstanding against estate, or that intestate left any other heirs than defendant, administrator could not recover. Roberts v. Morgan, 30 Vt. 319 (1858).

Where an administrator was appointed more than sixty years after death of his intestate, and sued in ejectment to recover lands which had descended to heirs of the intestate, under some of whom defendant took possession, administrator could not oust tenant claiming under heirs, nor be let into possession with them as tenant in common. Cushman v. Jordan, 13 Vt. 597 (1841).

4. Ejectment.

Administrator of the grantor, in a conditional deed, could maintain an action of ejectment, in his name as administrator, for a recovery of the premises upon a forfeiture of them on account of the nonperformance, by the grantees, of condition of deed. Austin v. Downer, 27 Vt. 636 (1855).

An administrator may maintain an action for the recovery of the possession of real estate, for the use of the heirs, until after a decree of distribution has been made by the probate court. McFarland v. Stone, 17 Vt. 165 (1845).

5. Pleading.

When an administrator entered to prosecute a suit brought by his intestate, question of survival could be aptly raised by a motion to dismiss. Noyes v. Village of Hyde Park, 73 Vt. 261, 50 A. 1068 (1901).

6. Liens.

Administratrix of estate of recipient of state aid had authority to prosecute appeal from decision of social welfare department which resulted in attachment of lien upon decedent's property. Willette v. Vermont Department of Social Welfare, 129 Vt. 270, 276 A.2d 608 (1971).

7. Action by ancillary administrator in Vermont.

A foreign administrator is without standing to prosecute the claim of his decedent unless authorized by ancillary letters issued in Vermont. Weinstein v. Medical Center Hospital, 358 F. Supp. 297 (D. Vt. 1972).

Cited. State v. Therrien, 161 Vt. 26, 633 A.2d 272 (1993).

§ 1402. Sum recovered paid to person entitled thereto.

When an executor or administrator commences or prosecutes an action founded on a debt, demand, or claim for damages, and is only a trustee of the claim for the use of another person, and where the claim, although prosecuted in the name of the executor or administrator, belongs to another person, the sum or property recovered shall not be assets in the hands of the executor or administrator, but shall be paid over to the person entitled to them, after deducting or being paid the costs and expenses of the prosecution.

Amended 2017, No. 195 (Adj. Sess.), § 7.

History

Source. V.S. 1947, § 2928. P.L. § 2861. G.L. § 3316. P.S. § 2841. V.S. § 2453. R.L. § 2140. G.S. 52, § 18. R.S. 48, § 14.

Amendments--2017 (Adj. Sess.). Section amended generally.

ANNOTATIONS

Analysis

1. Construction.

Under this section any moneys recovered by an administrator under section 1491 of this title are assets in his hands, not to pay debts of deceased, but only for distribution to those entitled thereto. Abbott v. Abbott, 112 Vt. 449, 28 A.2d 375 (1942), overruled on other grounds, Lague, Inc. v. Royea, 152 Vt. 499, 568 A.2d 357 (1989).

Provision of this section, to the effect that sum recovered for wrongful death in action by administrator shall not be asset in hands of administrator, means only that it shall not be asset subject to payment of decedent's debts. Beery v. Rutland Railroad, 103 Vt. 388, 154 A. 671 (1931).

2. Effect of final accounting and discharge of executor.

Order approving final account and discharging executor does not foreclose executor from taking such necessary legal steps as may be required under this section to collect and administer assets undisposed of by the decree of distribution. Estate of Gould v. McIntyre, 126 Vt. 538, 237 A.2d 125 (1967).

3. Effect of decree of distribution.

Under this section an executor who had executed deed of land could bring action for reformation of deed and recovery of money due notwithstanding decree of distribution had been issued in estate. Estate of Gould v. McIntyre, 126 Vt. 538, 237 A.2d 125 (1967).

§§ 1403-1409. Repealed. 1971, No. 185 (Adj. Sess.), § 237, eff. March 29, 1972.

History

Former § 1403, relating to death of a coplaintiff or codefendant in a pending action, was derived from V.S. 1947, § 2929; P.L. § 2862; G.L. § 3317; P.S. § 2842; V.S. § 2454; R.L. § 2141; G.S. 52, § 19; R.S. 48, § 15; 1821, p. 52; R. 1797, p. 108, § 73; 1791, p. 4. The subject matter is now covered by Rule 25(a), Vermont Rules of Civil Procedure.

Former § 1404, relating to death of all plaintiffs or defendants in a pending action, was derived from V.S. 1947, § 2930; P.L. § 2863; G.L. § 3318; P.S. § 2843; V.S. § 2455; R.L. § 2142; G.S. 52, § 20; R.S. 48, § 16. The subject matter is now covered by Rule 25(a), Vermont Rules of Civil Procedure.

Former § 1405, relating to death of a sole plaintiff or defendant in a pending action, was derived from V.S. 1947, § 2931; 1947, No. 202 , § 2954; P.L. § 2864; G.L. § 3319; P.S. § 2844; V.S. § 2456; R.L. § 2143; G.S. 52, § 21; 1846, No. 39 ; R.S. 48, § 17; 1821, p. 52; 1804, p. 96; R. 1797, p. 108, § 73; 1791, p. 3. The subject matter is now covered by Rule 17(a), Vermont Rules of Civil Procedure.

Former § 1406, relating to application of section 1405 of this title to actions upon official bonds, was derived from V.S. 1947, § 2932; P.L. § 2865; G.L. § 3320; P.S. § 2845; V.S. § 2457; R.L. § 2143; G.S. 52, § 21; 1846, No. 39 ; R.S. 48, § 17; 1821, p. 52; 1804, p. 96; R. 1797, p. 108, § 73; 1791, p. 3.

Former § 1407, relating to citation of executor or administrator to appear and defend or prosecute a pending action, was derived from V.S. 1947, § 2933; P.L. § 2866; G.L. § 3321; P.S. § 2846; V.S. § 2458; R.L. § 2144; G.S. 52, § 22; R.S. 48, § 18; 1821, p. 52; R. 1797, p. 108, § 73; 1791, p. 4.

Former § 1408, relating to nonsuit or default when an executor or administrator neglected to become a party, was derived from V.S. 1947, § 2934; P.L. § 2867; G.L. § 3322; P.S. § 2847; V.S. § 2459; R.L. § 2145; G.S. 52, § 23; R.S. 48, § 19; 1821, p. 52; R. 1797, p. 108, § 73; 1791, p. 4.

Former § 1409, relating to continuance of actions pending appointment of an executor or administrator, was derived from V.S. 1947, § 2935; 1947, No. 202 , § 2958; P.L. § 2868; G.L. § 3323; P.S. § 2848; V.S. § 2460; 1890, No. 27 ; R.L. § 2146; G.S. 52, § 24; R.S. 48, § 20; 1821, p. 52; R. 1797, p. 108, § 73; R. 1797, p. 236, § 59; 1791, p. 4.

§ 1410. Representative may compromise claims of the estate.

With the approval of the Probate Division of the Superior Court, an executor or administrator may compromise with a debtor of the deceased for a debt due and may give a discharge of the debt on receiving payment of the compromised amount.

Amended 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011; 2017, No. 195 (Adj. Sess.), § 7.

History

Source. V.S. 1947, § 2936. P.L. § 2869. G.L. § 3324. P.S. § 2849. V.S. § 2461. R.L. § 2147. G.S. 52, § 26. R.S. 48, § 22.

Amendments--2017 (Adj. Sess.). Section amended generally.

Amendments--2009 (Adj. Sess.) Substituted "probate division of the superior court" for "probate court."

ANNOTATIONS

1. Subsequent actions.

Compromise by administrator, with approval of probate court, of a suit brought by creditors of decedent to set aside certain mortgages executed by decedent, does not bar a subsequent suit by heirs of decedent against same defendant involving transfers of other property by decedent. Marsh v. Marsh, 78 Vt. 399, 63 A. 159 (1906).

§ 1411. Disputed claim may be referred.

When there is a disputed claim between an executor or administrator on behalf of the estate and another person, it may be referred to a master as provided by the Rules of Probate Procedure. The award, made in writing and returned to and accepted by the court, shall be final between the parties.

Amended 1985, No. 144 (Adj. Sess.), § 64; 2017, No. 195 (Adj. Sess.), § 7.

History

Source. V.S. 1947, § 2937. P.L. § 2870. G.L. § 3325. P.L. § 2850. V.S. § 2462. R.L. § 2148. G.S. 48, § 39. R.S. 44, § 37. 1821, p. 55. R. 1797, p. 253, § 85.

Amendments--2017 (Adj. Sess.). Section amended generally.

Amendments--1985 (Adj. Sess.). Rewrote the first sentence.

Cross References

Cross references. Masters, see Rule 53, Vermont Rules of Probate Procedure.

ANNOTATIONS

Analysis

1. Discretion of court.

Probate court was not restricted to any particular class of "disputed claims" in ordering a reference. Noyes v. Phillips, 57 Vt. 229 (1884).

Court could appoint whom it pleased as referee. Noyes v. Phillips, 57 Vt. 229 (1884).

2. Submission.

Reference was not an arbitration proper, and no formal submission was required. Noyes v. Phillips, 57 Vt. 229 (1884).

3. Procedure not exclusive.

Arbitration procedure provided by this section and section 1412 of this title, concerning issues between an executor and estate he represents, is not exclusive; such matters may also be determined in other actions wherein issues between such parties arise. In re Estate of Delligan, 111 Vt. 227, 13 A.2d 282 (1940).

§ 1412. Claim between executor and estate.

When a claim exists between an executor or administrator and the estate, a special administrator may be appointed solely for the purpose of acting upon that claim.

Amended 1985, No. 144 (Adj. Sess.), § 65.

History

Source. V.S. 1947, § 2938. P.L. § 2871. G.L. § 3326. P.S. § 2851. V.S. § 2463. R.L. § 2149. G.S. 48, § 40. R.S. 44, § 38. 1834, No. 4 , § 3.

Amendments--1985 (Adj. Sess.). Section amended generally.

ANNOTATIONS

Analysis

1. Enforcement of award.

Action of assumpsit will lie upon an award in favor of one of the heirs against the administrator, personally, when they had regularly submitted their differences to arbitration. Powers v. Douglass, 53 Vt. 471 (1881).

2. Revocation of order.

Probate court could revoke order of reference (while the same was pending) of an alleged claim existing between an administrator and others on petition of one not a party to reference, and against consent of parties, upon proof of facts which might render further proceedings before referees fraudulent and injurious to right of persons interested in claim referred, and denial of probate court upon such petition could be appealed from, whether petitioner was a party to reference or not. Lathrop v. Hitchcock, 38 Vt. 496 (1866).

3. Procedure not exclusive.

Arbitration procedure provided by this section and section 1411 of this title, concerning issues between an executor and estate he represents, is not exclusive; such matters may also be determined in other actions wherein issues between such parties arise. In re Estate of Delligan, 111 Vt. 227, 13 A.2d 282 (1940).

§ 1413. Debt as personalty; representative may foreclose mortgage.

A debt secured by mortgage belonging to the estate of a deceased person as mortgagee or assignee of the right of a mortgagee, when the mortgage was not foreclosed in the lifetime of the deceased, shall be personal assets in the hands of the executor or administrator and administered and accounted for as such. The executor or administrator may foreclose the mortgage and take possession of the mortgaged premises as the decedent might have done in the decedent's lifetime.

Amended 2017, No. 195 (Adj. Sess.), § 7.

History

Source. V.S. 1947, § 2939. 1947, No. 202 , § 2962. P.L. § 2872. G.L. § 3327. P.S. § 2852. V.S. § 2464. R.L. § 2150. G.S. 52, § 27. R.S. 48, § 23.

Revision note. Substituted a semicolon for " - " in the section heading to conform to V.S.A. style.

Amendments--2017 (Adj. Sess.). Substituted "the" for "such" preceding "mortgage was not foreclosed" in the first sentence, and "decedent" for "mortgage or assignee" preceding "might" and "the decedent's" for "his" preceding "lifetime" in the second sentence.

ANNOTATIONS

Analysis

1. Interest in mortgaged premises as assets of estate.

Upon death of mortgagee before foreclosure, his right and interest in mortgaged premises vested in his executor or administrator, to be administered as assets belonging to estate. Pierce v. Brown, 24 Vt. 165 (1852).

2. Authority to discharge or assign mortgage.

Administrator upon estate of a mortgagee could without any order from probate court discharge mortgage, or assign interest of estate in mortgaged premises. Collamer v. Langdon, 29 Vt. 32 (1856).

3. Foreclosure.

Administrator could foreclose a mortgage in favor of his intestate. Herrick's Administrator v. Teachout, 74 Vt. 196, 52 A. 432 (1902).

§§ 1414, 1415. Repealed. 2017, No. 195 (Adj. Sess.), § 7.

History

Former §§ 1414, 1415. Former § 1414, relating to equity of redemption to be held in trust, was derived from V.S. 1947, § 2940; 1947, No. 202 , § 2963; P.L. § 2873; G.L. § 3328; P.S. § 2853; V.S. § 2465; R.L. § 2151; G.S. 52, § 28; R.S. 48, § 24.

Former § 1415, relating to disposal of lands held under mortgage or taken on execution, was derived from V.S. 1947, § 2940; 1947, No. 202 , § 2963; P.L. § 2873; G.L. § 3328; P.S. § 2853; V.S. § 2465; R.L. § 2151; G.S. 52, § 28; R.S. 48, § 24.

§ 1416. Estate not sued when masters appointed; exceptions.

Nothing in this chapter shall authorize a claimant to commence or prosecute an action against an executor or administrator where a master is appointed in the proceeding, nor where a time is allowed by an order of the Probate Division of the Superior Court for the executor or administrator to pay the debts against the deceased. Such an action shall not be commenced or prosecuted except as provided by law for that purpose.

Amended 1985, No. 144 (Adj. Sess.), § 67; 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011; 2017, No. 195 (Adj. Sess.), § 7.

History

Source. V.S. 1947, § 2942. P.L. § 2875. G.L. § 3330. P.S. § 2855. V.S. § 2467. R.L. § 2154. G.S. 52, § 25. G.S. 53, § 57. R.S. 48, § 21. R.S. 49, § 54. 1821, p. 67.

Amendments--2017 (Adj. Sess.) Made minor stylistic changes.

Amendments--2009 (Adj. Sess.) Substituted "Probate Division of the Superior Court" for "probate court."

Amendments--1985 (Adj. Sess.). Substituted "masters" for "commissioners" in the section heading and "a master is" for "commissioners are" preceding "appointed" and "in the proceeding" for "on the estate" thereafter and made other minor stylistic changes in the text of the section.

Cross References

Cross references. Masters, see Rule 53, Vermont Rules of Probate Procedure.

ANNOTATIONS

Cited. Powers v. Powers' Estate, 57 Vt. 49 (1885).

§ 1417. Prosecution of action.

A person having a contingent or other claim against a deceased person may prosecute the claim against the executor, administrator, heirs, devisees, or legatees. An action commenced against the deceased before death may be prosecuted to final judgment. A claimant having a lien on the real or personal estate of the deceased, by attachment previous to death, on obtaining judgment, may have execution against the real or personal estate.

Amended 1985, No. 144 (Adj. Sess.), § 68; 2017, No. 195 (Adj. Sess.), § 7.

History

Source. V.S. 1947, § 2943. P.L. § 2876. G.L. § 3331. P.S. § 2856. V.S. § 2468. R.L. § 2155. G.S. 53, § 57. R.S. 49, §§ 53, 54. 1821, pp. 49, 51, 67. R. 1797, p. 235, §§ 56, 57, 58.

Amendments--2017 (Adj. Sess.). Substituted "claim" for "same" following "prosecute the" in the first sentence, deleted "in such case" preceding "an action" in the second sentence, and substituted "the" for "such" preceding "real or personal" in the last sentence.

Amendments--1985 (Adj. Sess.). Rewrote the first sentence and deleted "his" preceding "death" in the second and third sentences.

Cross References

Cross references. Substitution of parties, see Rule 25, Vermont Rules of Civil Procedure.

ANNOTATIONS

Analysis

1. Construction.

Provisions of 14 V.S.A. § 1417 did not direct survival of claims alleging violation of Act 250 and Consumer Fraud Act, where history of section indicated it was procedural, not substantive, and literal reading would render superfluous the specific statutes on survival of actions. State v. Therrien, 161 Vt. 26, 633 A.2d 272 (1993).

2. Suits not authorized by section.

This section did not authorize prosecution of a claim barred by proceedings in probate court, nor of a claim against executor or administrator who had fully administered upon estate, not against heirs, devisees or legatees who had received no part of real or personal estate of deceased. Boyden v. Ward, 38 Vt. 628 (1866).

§ 1418. Repealed. 2017, No. 195 (Adj. Sess.), § 7.

History

Former § 1418. Former § 1418, relating to costs not to be taxed against state, was derived from V.S. 1947, § 2944; P.L. § 2877; G.L. § 3332; P.S. § 2857; V.S. § 2469; R.L. § 2156; G.S. 54, § 13; R.S. 50, § 12; 1821, p. 51.

ANNOTATIONS

Analysis

1. Purpose.

Executors and administrators are placed upon the same ground with other suitors, as it respects their liability for costs, which may be adjudged against them. O'Hear v. Skeeles, 22 Vt. 152 (1850).

2. Costs against administrator personally.

Where a creditor of an estate appealed from a decision of commissioners allowing a balance against him in favor of estate, and in the county court he recovered judgment in his favor for damages and costs, execution for costs was properly issued by county court against administrator personally, as for his own debt. O'Hear v. Skeeles, 22 Vt. 152 (1850).

Subchapter 2. Survival of Causes

ANNOTATIONS

Analysis

1. Generally.

Survival statutes allow a decedent's estate to recover for injuries sustained by decedent prior to his or her death, and death need not result from the injury, as with wrongful death actions. Clymer v. Webster, 156 Vt. 614, 596 A.2d 905 (1991).

2. Construction with other laws.

Survival statutes were not applicable in action brought by decedent's parents and administrator under Dram Shop Act (DSA) because DSA had its own survival provision, although court would look to interpretations of survival statutes for guidance in construing DSA survival provision. Clymer v. Webster, 156 Vt. 614, 596 A.2d 905 (1991).

3. Scope of recovery.

Survival statutes only allow recovery for loss and suffering endured by decedent prior to death; damages for loss of future earnings are not available, and same interpretation should be accorded survival provision contained in Dram Shop Act. Clymer v. Webster, 156 Vt. 614, 596 A.2d 905 (1991).

§ 1451. What actions survive.

Actions of ejectment or other proper actions to recover the seisin or possession of lands, tenements, or hereditaments, actions of replevin, actions on tort on account of the wrongful conversion of personal estate, and actions on tort on account of a trespass or for damages done to real or personal estate shall survive, in addition to the actions that survive by common law, and may be commenced and prosecuted by the executor or administrator.

Amended 2017, No. 195 (Adj. Sess.), § 7.

History

Source. V.S. 1947, § 2921. P.L. § 2854. G.L. § 3309. P.S. § 2834. V.S. § 2446. R.L. § 2133. G.S. 52, § 10. R.S. 48, § 10. 1821, p. 53. R. 1797, p. 239, §§ 65, 66.

Amendments--2017 (Adj. Sess.). Substituted "on" for "of" preceding "tort" in two places.

Cross References

Cross references. Substitution of parties, see Rule 25, Vermont Rules of Civil Procedure.

ANNOTATIONS

Analysis

1. Law governing.

Whether claim for mesne profits, after judgment for plaintiff in ejectment, survives depends on law of state where land lies. Burgess v. Gates, 20 Vt. 326 (1848).

2. Personal estate.

A breach of fiduciary duty claim constitutes a claim for damages done to personal estate and survives the plaintiff's death. Accordingly, an estate had standing to bring a breach of fiduciary duty claim against the decedent's niece. Estate of Kuhling v. Glaze, 208 Vt. 273, 196 A.3d 1125 (2018).

Right of father to services of his daughter was not personal estate within meaning of section; the phrase "personal estate" had reference to specific personal property. Davis v. Carpenter, 72 Vt. 259, 47 A. 778 (1900).

3. Particular actions .

A claim for workers' compensation survived the death of a claimant who had no dependents because it was based on a contract right and was an asset of the estate, as with any other debt. Dodge v. Precision Construction Products, Inc., 175 Vt. 101, 820 A.2d 207 (2003).

When the basis of an audita querela is altogether personal it will die with the person. Connecticut & Pas. Rivers Railroad v. Administrator of Bliss, 24 Vt. 411 (1852).

*4. Bastardy.

Right of mother of illegitimate child to prosecute putative father under section 331 et seq. of Title 15 died with her. Rollins v. Chalmers, 49 Vt. 515 (1877).

*5. Fraud.

An action for fraud in sale of shares of stock did not survive under this section. Jones v. Estate of Ellis, 68 Vt. 544, 35 A. 488 (1896).

*6. Mesne profits.

Claim for mesne profits after judgment in favor of plaintiff in ejectment survived. Burgess v. Gates, 20 Vt. 326 (1848).

*7. Seduction of daughter.

An action brought by a father for seduction of his minor daughter did not survive at common law nor by statute. Davis v. Carpenter, 72 Vt. 259, 47 A. 778 (1900).

*8. Transporting pauper without order.

An action upon statute for transporting a pauper from one town in this state to another town in this state, or aiding therein, without an order of removal, with intent to charge such town with the support of such pauper, did not survive. Town of Winhall v. Estate of Sawyer, 45 Vt. 466 (1873).

*9. Trespass against sheriff.

Action of trespass on the case against a sheriff, for default of his deputy, in not paying to plaintiff money collected by deputy upon an execution in favor of plaintiff against a third person, would survive. Bellows v. Administrator of Allen, 22 Vt. 108 (1849).

An action of trespass on the case against a sheriff for default of his deputy in not keeping property attached upon mesne process and not delivering it to officer holding execution obtained in suit would survive. Dana v. Lull, 21 Vt. 383 (1849).

An action of trespass on the case against a sheriff for a false return upon process did not survive to administrator of plaintiff. Administrator of Barrett v. Copeland, 20 Vt. 244 (1848).

Cited. Clymer v. Webster, 156 Vt. 614, 596 A.2d 905 (1991); State v. Therrien, 161 Vt. 26, 633 A.2d 272 (1993).

§ 1452. When actions for personal injury survive.

In an action for the recovery of damages for a bodily hurt or injury, occasioned to the plaintiff by the act or default of the defendant or defendants, if either party dies during the pendency of the action, the action shall survive and may be prosecuted to final judgment by or against the executors or administrators of the deceased party. When there are several defendants in the action, and one or more, but not all, die, it shall be prosecuted against the surviving defendant or defendants, and against the estate of the deceased defendant or defendants.

Amended 1977, No. 120 (Adj. Sess.), § 1, eff. Feb. 9, 1978; 2017, No. 195 (Adj. Sess.), § 7.

History

Source. V.S. 1947, § 2922. P.L. § 2855. G.L. § 3310. P.S. § 2835. V.S. § 2447. R.L. § 2134. G.S. 52, § 11. 1847, No. 42 , § 1.

Amendments--2017 (Adj. Sess.). Substituted "the" for "such" preceding "action" in two places and preceding "deceased".

Amendments--1977 (Adj. Sess.). Substituted "and against the estate of the deceased defendant or defendants" for "only" at the end of the second sentence.

Cross References

Cross references. Substitution of parties, see Rule 25, Vermont Rules of Civil Procedure.

ANNOTATIONS

Analysis

1. Purpose.

Plain intent of this section was to make all actions survive where the cause of action was for a physical injury to person, caused in any unlawful manner. Administrator of Whitcomb v. Cook, 38 Vt. 477 (1866).

2. Construction.

This section has reference to survival of an action pending at time of death of a party, as distinguished from the survival of cause of action on which suit is based. Benson v. Crain, 91 Vt. 44, 99 A. 255 (1916).

3. Causes of action.

An action to recover damages for an unlawful arrest and imprisonment survived death of party injured, it being regarded as an action to recover damages for a bodily hurt or injury. Administrator of Whitcomb v. Cook, 38 Vt. 477 (1866).

Where death occurs, two causes of action may arise, one in favor of decedent for his loss and suffering resulting from injury in his lifetime, the other founded on his death or on damages resulting from his death to his widow and next of kin, and both actions are to be prosecuted in point of form in name of his personal representative, but damages in the two suits are given upon entirely different principles, and for different purposes. Needham v. Grand Trunk Railway, 38 Vt. 294 (1865).

4. Limitation of actions.

Survival action brought for bodily hurt pursuant to this section and section 1453 of this title must be brought within two years from date of issuance of letters of administration as required by section 557 of Title 12. Law's Administrator v. Culver, 121 Vt. 285, 155 A.2d 855 (1959).

5. Death of plaintiff.

Action in name of husband and wife, for injuries to wife, survived to her administrator. Earl v. Tupper, 45 Vt. 275 (1873).

6. Death of defendant.

Action to recover damages for alleged malpractice commenced against two defendants, one of whom has died during the pendency thereof, cannot be prosecuted against executor of deceased defendant, but, when his death is suggested on record, the case stands in legal contemplation as a suit against surviving defendant alone. Benson v. Crain, 91 Vt. 44, 99 A. 255 (1916).

7. Prior actions.

A former recovery by the father for loss of service, etc., of his minor son, consequent on bodily injuries occasioned by defendant, is no bar to a recovery by father as administrator of son, of such damages as son himself might have recovered; and herein he may recover exemplary damages. Bradley v. Andrews, 51 Vt. 525 (1879).

Cited. Clymer v. Webster, 156 Vt. 614, 596 A.2d 905 (1991); State v. Therrien, 161 Vt. 26, 633 A.2d 272 (1993).

§ 1453. Survival of causes of action.

The causes of action mentioned in sections 1451 and 1452 of this title shall survive. Actions based thereon may be commenced and prosecuted by or against the executor or administrator. When the actions are commenced in the lifetime of the deceased, after death the same may be prosecuted by or against the executor or administrator where by law that mode of prosecution is authorized.

Amended 1985, No. 144 (Adj. Sess.), § 69; 2017, No. 195 (Adj. Sess.), § 7.

History

Source. V.S. 1947, § 2923. 1947, No. 202 , § 2946. P.L. § 2856. G.L. § 3311. P.S. § 2836. V.S. § 2448. R.L. § 2135. G.S. 52, § 12. 1847, No. 42 , § 2. R.S. 48, § 12. 1821, p. 53. R. 1797, p. 239, §§ 65, 66.

Amendments--2017 (Adj. Sess.). Substituted "the" for "such" preceding "actions".

Amendments--1985 (Adj. Sess.). Deleted "his" preceding "death" in the third sentence and deleted the former fourth sentence.

Cross References

Cross references. Substitution of parties, see Rule 25, Vermont Rules of Civil Procedure.

ANNOTATIONS

Analysis

1. Construction with other laws.

Wrongful death act, sections 1491 and 1492 of this title, does not create a new cause of action, it merely creates a new right of recovery which attaches to the right of action arising from the original wrong, engrafting a new element of damages upon the right of action surviving by virtue of this section. Whitchurch v. Perry, 137 Vt. 464, 408 A.2d 627 (1979).

This section did not conflict with section 1452 of this title and did not permit plaintiff in an action to recover damages for alleged malpractice against two defendants, one of whom had died during pendency of suit, to revive action against executor of deceased defendant by citing him in to defend. Benson v. Crain, 91 Vt. 44, 99 A. 255 (1916).

2. Causes of action.

Cause of action for bodily injury rested upon tortious injuries received prior to death, not the existence of beneficiaries of the estate, and it was error to grant summary judgment in such an action on the ground that it was pointless to allow maintenance of the action because there were no beneficiaries to recover and thus any proceeds of the suit would escheat to the town of decedent's inhabitance. Whitchurch v. Perry, 137 Vt. 464, 408 A.2d 627 (1979).

3. Limitation of actions.

Survival action brought for bodily hurt pursuant to this section and section 1452 of this title must be brought within two years from date of issuance of letters of administration, as required by section 557 of Title 12. Law's Administrator v. Culver, 121 Vt. 285, 155 A.2d 855 (1959).

4. Damages.

The damages necessary to sustain a negligence claim under this section are the damages suffered by the decedent at and after the injury and prior to death. Whitchurch v. Perry, 137 Vt. 464, 408 A.2d 627 (1979).

Cited. Thayer v. Herdt, 155 Vt. 448, 586 A.2d 1122 (1990); Clymer v. Webster, 156 Vt. 614, 596 A.2d 905 (1991); State v. Therrien, 161 Vt. 26, 633 A.2d 272 (1993).

§ 1454. Trespass; damages.

In an action on tort on account of a trespass commenced or prosecuted against an executor or administrator, the plaintiff or claimant shall recover for the value of the goods taken, or the actual damage, and not vindictive or exemplary damages.

Amended 1985, No. 144 (Adj. Sess.), § 70; 2017, No. 195 (Adj. Sess.), § 7.

History

Source. V.S. 1947, § 2924. P.L. § 2857. G.L. § 3312. P.S. § 2837. V.S. § 2449. R.L. § 2136. G.S. 52, § 13. R.S. 48, § 13.

Amendments--2017 (Adj. Sess.). Substituted "on" for "of" preceding "tort".

Amendments--1985 (Adj. Sess.). Deleted "or where a claim for a trespass is presented and prosecuted before the commissioners" following "administrator".

§ 1455. Heir may not sue until share assigned.

When an executor or administrator is appointed and assumes the trust, an action of ejectment, or other action to recover the seisin or possession of lands, or for damage done to the lands, shall not be maintained by an heir or devisee until there is a decree of the Probate Division of the Superior Court assigning the lands to the heir or devisee, or the time allowed for paying debts has expired, unless the executor or administrator surrenders the possession to the heir or devisee.

Amended 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011; 2017, No. 195 (Adj. Sess.), § 7.

History

Source. V.S. 1947, § 2925. P.L. § 2858. G.L. § 3313. P.S. § 2838. V.S. § 2450. R.L. § 2137. G.S. 52, § 14. R.S. 48, § 11. 1821, p. 53.

Amendments--2017 (Adj. Sess.). Substituted "the" for "such" preceding "lands" and "heir" in two places.

Amendments--2009 (Adj. Sess.) Substituted "probate division of the superior court" for "probate court."

ANNOTATIONS

Analysis

1. Presumption of discharge of administrator's lien.

Devisee of land may maintain ejectment therefor when it is obvious that no action of the probate court, in ordering a division, or assigning the land, can become necessary, and there is no pretense that the executor has any lien upon the land, or so long a time has elapsed that his lien will be presumed satisfied. Abbott v. Pratt, 16 Vt. 626 (1844).

Grantee of an heir holds land, as heir did, subject to administrator's lien; but, even in a case where it is shown that administration was granted upon estate, it will be presumed, after lapse of nine years without any interference of administrator, that his lien has been satisfied, especially when party denying the right of the heir's grantee is a stranger to the title. Cushman v. Jordan, 13 Vt. 597 (1841); Roberts v. Morgan, 30 Vt. 319 (1858); Austin v. Bailey, 37 Vt. 219 (1864).

An heir, as such, cannot before a division, maintain ejectment or trespass quare clausum fregit, where he has had no possession; yet, all heirs conveying to plaintiff by deed, and two years elapsing, without any interference of administrator, are sufficient to presume administrator's lien upon the land satisfied, as against defendant, who appears a stranger to all title. Hubbard v. Ricart, 3 Vt. 207 (1831).

2. Discharge of lien by performance of duties.

When an administrator has performed all the duties by reason of which a lien is given him on the intestate property, that lien is discharged, and the heirs hold the estate acquit of him and his lien. Coolidge v. Taylor, 85 Vt. 39, 80 A. 1038 (1911).

3. Surrender of possession to heir.

Mere fact that plaintiff is administrator of a decedent's estate does not show that plaintiff has the right to maintain trespass on the freehold for injuries to real property of which decedent died seized, committed after his death, for plaintiff, notwithstanding the lien on real property which an administrator may assert in connection with settlement of an estate, may have surrendered possession to heir before decree of distribution, and before expiration of time for paying debts, as this section recognizes that he may. Plumley's Administrator v. Plumley, 84 Vt. 286, 79 A. 45 (1911).

4. Ejectment by heirs where no administrator appointed.

If no administrator is appointed upon estate of a deceased person, his heirs may maintain ejectment, to recover land to which he had title, without an order of distribution being made by the probate court. Buck v. Squiers, 22 Vt. 484 (1850).

Cited. Estate of Gould v. McIntyre, 126 Vt. 538, 237 A.2d 125 (1967).

Subchapter 3. Wrongful Death

Cross References

Cross references. Disavowal of agreement adversely affecting right to compensation for death, see § 1076 of Title 12.

ANNOTATIONS

Analysis

1. Construction.

This subchapter is remedial in nature, designed to allay harsh common law rule denying liability due to death of victim, and must be construed liberally. State v. Oliver, 151 Vt. 626, 563 A.2d 1002 (1989).

Because this subchapter was designed to allay harsh common law rule denying liability due to death of victim, it is remedial in nature and must be construed liberally. Clymer v. Webster, 156 Vt. 614, 596 A.2d 905 (1991).

This subchapter does not create a new cause of action, but rather a new right of recovery or new element of damages engrafted upon the existing cause of action. Clymer v. Webster, 156 Vt. 614, 596 A.2d 905 (1991).

This subchapter is remedial, is designed to alleviate the harsh common law rule of no liability because the person injured had died, and as such must be given liberal construction: whether or not it is in derogation of the common law, it is clearly designed to remedy an inequity in the common law and fill a void repugnant to general equitable principles. Vailancourt v. Medical Center Hospital of Vermont, Inc., 139 Vt. 138, 425 A.2d 92 (1980).

2. Construction with other laws.

This subchapter does not create a new cause of action, it merely creates a new right of recovery which attaches to the right of action arising from the original wrong, engrafting a new element of damages upon the right of action surviving by virtue of section 1453 of this title, providing that a cause of action for bodily injury survives the death of the victim. Whitchurch v. Perry, 137 Vt. 464, 408 A.2d 627 (1979).

Death statute did not apply where injury which caused death was inflicted in another state though upon a citizen of this state who was brought here before death. Needham v. Grand Trunk Railway, 38 Vt. 294 (1865).

History

Law review commentaries

Law review. For article, "Parents 'Pecuniary Injuries' for the Wrongful Death of an Adult Child: Where is the Love?," see 12 Vt. L. Rev. 57 (1987).

§ 1491. Right of action where death results from wrongful act.

When the death of a person is caused by the wrongful act, neglect, or default of a person or corporation, and the act, neglect, or default is such as would have entitled the party injured to maintain an action and recover damages in respect thereof, if death had not ensued, the person or corporation liable to such action shall be liable to an action for damages, notwithstanding the death of the person injured and although the death is caused under such circumstances as amount in law to a felony.

Amended 2017, No. 195 (Adj. Sess.), § 7.

History

Source. V.S. 1947, § 2926. P.L. § 2859. G.L. § 3314. P.S. § 2839. V.S. § 2451. 1892, No. 80 , § 58. 1884, No. 76 . R.L. § 2138. G.S. 52, § 15. 1849, No. 8 , § 1.

Amendments--2017 (Adj. Sess.). Made minor stylistic changes.

ANNOTATIONS

Analysis

1. Applicability.

On appeal, plaintiffs acknowledged that a dog was personal property and as such, their loss of companionship claim for the intentional killing of their pet dog did not fall within the ambit of the wrongful death statute. Scheele v. Dustin, 188 Vt. 36, 998 A.2d 697 (2010).

To the extent that cat owners asked for an extension of the Wrongful Death Act to pets, in an area of law created entirely through statutory enactment, the court was hesitant to create rights where the legislature chose not to do so. Goodby v. Vetpharm, Inc., 186 Vt. 63, 974 A.2d 1269 (2009).

2. Purpose.

Right of action given by this section is not related to any rights of the deceased in his lifetime, but is for the designated beneficiaries to compensate them for the loss sustained by them. Legg v. Britton, 64 Vt. 652, 24 A. 1016 (1892).

3. Cause of action derived from deceased.

Vermont's wrongful death statute does not create a new type of legal claim - it simply gives a right of recovery to a decedent's estate based on the injury to the deceased, 14 V.S.A. § 1491 - the decedent's estate must still allege and prove a traditional claim for injury - in state tort law or otherwise - in order to recover. Fortunati v. Campagne, - F. Supp. 2d - (D. Vt. Dec. 29, 2009).

Right of action given by this section arises from injury to deceased, which, if he had survived, would have given him a cause of action. Abbott v. Abbott, 112 Vt. 449, 28 A.2d 375 (1942).

This section does not give a new right of action, but a new right of recovery, not existing at common law, arising from the injury to the deceased which gave or would have given him a right of action if death had not ensued. Berry v. Rutland Railroad, 103 Vt. 388, 154 A. 671 (1931).

Where intestate, if death had not ensued, would have had no right of action for defendant's negligence, his personal representative can have none, for the benefit of next of kin. Carty's Administrator v. Village of Winooski, 78 Vt. 104, 62 A. 45 (1905).

This section does not create a new and additional cause of action, but provides for recovery of a new class of damages in case a right of action would have existed in the deceased person if living. Legg v. Britton, 64 Vt. 652, 24 A. 1016 (1892).

If right of action is extinguished in lifetime of injured person, as by a settlement or recovery, no further recovery can be had after his death. Legg v. Britton, 64 Vt. 652, 24 A. 1016 (1892).

4. Former recovery.

Where injured person began suit in his lifetime, which his administrator prosecuted to judgment after his death, such judgment would bar a second suit for benefit of widow, although damages awarded in the first suit were solely for the injuries to deceased person in his lifetime. Legg v. Britton, 64 Vt. 652, 24 A. 1016 (1892).

5. Time of death.

To entitle the administrator to maintain action it was not necessary that death should have resulted instantly from injury complained of. Boyden v. Fitchburg Railroad, 70 Vt. 125, 39 A. 771 (1897).

6. Death of fetus.

A viable fetus is a "person" within meaning of section 1492 of this title and this section, even though the viable fetus is later stillborn, and a right of recovery exists for negligently causing the wrongful death of a full term viable fetus which is stillborn. Vaillancourt v. Medical Center Hospital of Vermont, Inc., 139 Vt. 138, 425 A.2d 92 (1980).

7. Death of wrongdoer.

Right given by this section survived death of wrongdoer, since it was not a new cause of action but a new right of recovery, and therefore administrator of wronged decedent could present claim to commissioners of estate of wrongdoer. Desautel's Administrator v. Mercure's Estate, 104 Vt. 211, 158 A. 682 (1932).

8. Contracts in avoidance of future liability.

Contract by which railroad company seeks to relieve itself from liability for future negligence, made with next of kin of employee with view to liability under this section, is against public policy and void. Tarbell v. Rutland Railroad, 73 Vt. 347, 51 A. 6 (1901).

9. Dram shop liability.

This section provides a remedy when death is caused "by the wrongful act, neglect or default" of another, and acts which trigger dram shop liability clearly fit within broad scope of term "wrongful act." Clymer v. Webster, 156 Vt. 614, 596 A.2d 905 (1991).

Cited. Fay v. Kent, 55 Vt. 557 (1883); Westcott v. Central Vermont Railroad, 61 Vt. 438, 17 A. 745 (1889); Lazelle v. Town of Newfane, 70 Vt. 440, 41 A. 511 (1898); Wetherby's Administrator v. Twin State Gas Co., 83 Vt. 189, 75 A. 8 (1910); Woodcock's Administrator v. Hallock, 98 Vt. 284, 127 A. 380 (1925); Goodwin v. Gaston, 103 Vt. 357, 154 A. 772 (1931); Parent v. Beeman, 138 Vt. 607, 420 A.2d 866 (1980); Hay v. Medical Center Hospital, 145 Vt. 533, 496 A.2d 939 (1985); Thayer v. Herdt, 155 Vt. 448, 586 A.2d 1122 (1990); Bacon v. Lascelles, 165 Vt. 214, 678 A.2d 902 (1996); Quesnel v. Town of Middlebury, 167 Vt. 252, 706 A.2d 436 (1997).

§ 1492. Action for death from wrongful act; procedure; damages.

  1. The action shall be brought in the name of the personal representative of the deceased person and commenced within two years from the discovery of the death of the person, but if the person against whom the action accrues is out of the State, the action may be commenced within two years after the person comes into the State. After the cause of action accrues and before the two years have run, if the person against whom it accrues is absent from and resides out of the State and has no known property within the State that can by common process of law be attached, the time of his or her absence shall not be taken as part of the time limited for the commencement of the action. If the death of the decedent occurred under circumstances such that probable cause is found to charge a person with homicide, the action shall be commenced within seven years after the discovery of the death of the decedent or not more than two years after the judgment in that criminal action has become final, whichever occurs later.
  2. The court or jury before whom the issue is tried may give such damages as are just, with reference to the pecuniary injuries resulting from the death, to the spouse and next of kin, as the case may be. In the case where the decedent is a minor child, the term pecuniary injuries shall also include the loss of love and companionship of the child and for destruction of the parent-child relationship in an amount as under all the circumstances of the case, may be just.
  3. The amount recovered shall be for the benefit of the spouse and next of kin, as the case may be and shall be distributed by the personal representative as hereinafter provided. The distribution, whether of the proceeds of a settlement or of an action, shall be in proportion to the pecuniary injuries suffered, the proportions to be determined upon notice to all interested persons in such manner as the Superior Court, or in the event the court is not in session a Superior judge, shall deem proper and after a hearing at such time as the court or judge may direct, upon application made by the personal representative or by the spouse or any next of kin. The distribution of the proceeds of a settlement or action shall be subject to the following provisions:
    1. In case the decedent shall have left a spouse surviving, but no children, the damages recovered shall be for the sole benefit of the spouse.
    2. In case the decedent leaves neither spouse nor children, but leaves a mother and leaves a father who has abandoned the decedent or has left the maintenance and support of the decedent to the mother, the damages or recovery shall be for the sole benefit of the mother.
    3. In case the decedent leaves neither spouse nor children, but leaves a father and leaves a mother who has abandoned the decedent or has left the maintenance and support of the decedent to the father, the damages or recovery shall be for the sole benefit of the father.
    4. No share of the damages or recovery shall be allowed in the estate of a child to a parent who has neglected or refused to provide for the child during infancy or who has abandoned the child whether or not the child dies during infancy, unless the parental duties have been subsequently and continuously resumed until the death of the child.
    5. No share of the damages or recovery shall be allowed in the estate of a deceased spouse to his or her surviving spouse who has abandoned the decedent or who has persistently neglected to support the decedent prior to the decedent's death.
    6. The Superior Court shall have jurisdiction to determine the questions of abandonment and failure to support under subdivisions (2), (3), (4), and (5) of this subsection and the Probate Division of the Superior Court having jurisdiction of the decedent's estate shall decree the net amount recovered pursuant to the final judgment order of the Superior Court.
  4. A party may appeal from the findings and decision rendered pursuant to subsection (c) of this section as in causes tried by a court.
  5. Notwithstanding subsection (a) of this section, if the death of the decedent was caused by an intentional act constituting murder, the action may be commenced within seven years after the discovery of the death of the decedent.

    Amended 1961, No. 250 , eff. July 28, 1961; 1973, No. 193 (Adj. Sess.), § 3, eff. April 9, 1974; 1975, No. 223 (Adj. Sess.), § 1, eff. April 7, 1976; 1995, No. 114 (Adj. Sess.), §§ 1, 2; 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011; 2017, No. 195 (Adj. Sess.), § 7.

History

Source. V.S. 1947, § 2927. P.L. § 2860. 1919, No. 85 . G.L. § 3315. 1915, No. 97 . P.S. § 2840. V.S. § 2452. 1892, No. 80 , § 58. 1884, No. 76 . R.L. § 2139. G.S. 52, §§ 16, 17. 1849, No. 8 , §§ 2, 3.

2002. Substituted "subsection" for "section" in subdiv. (c)(6) to conform subdivision to V.S.A. style.

Amendments--2017 (Adj. Sess.). Section amended generally.

Amendments--2009 (Adj. Sess.) Subdiv. (c)(6): Substituted "probate division of the superior court" for "probate court."

Amendments--1995 (Adj. Sess.) Subsec. (a): Substituted "the discovery of the death of the person" for "his decease" following "two years from" in the first sentence, made minor changes in phraseology in the second sentence, and added the third sentence.

Subsec. (e): Added.

Amendments--1975 (Adj. Sess.). Subsec. (b): Added the second sentence.

Amendments--1973 (Adj. Sess.). Subsec. (c); Substituted "superior" for "county" preceding "court" in the second sentence and in subdiv. (6).

Amendments--1961. Subsec. (c): Amended generally.

Subsec. (d): Added.

Applicability--1975 (Adj. Sess.) amendment. 1975, No. 223 (Adj. Sess.), § 2, provided that the amendment to subsec. (b) of this section would apply to any and all actions or claims pending on April 7, 1976.

Cross References

Cross references. Comparative negligence, see § 1036 of Title 12.

ANNOTATIONS

Analysis

1. Constitutionality.

Plaintiffs were not denied equal protection because they could not recover for the wrongful death of their son, whereas parents of an adult child who dies without a surviving child are entitled to recovery. Limiting defendants' liability to one class of persons prevents the possibility of diluting the recovery. Limiting damages also correlates the wrongful death action to probate proceedings, as "next of kin" carries the same meaning in both laws, and as allowing damages for loss to other persons creates more opportunity for conflict between survivors, complicating and prolonging the proceedings as well as adding to their cost. Quesnel v. Town of Middlebury, 167 Vt. 252, 706 A.2d 436 (1997).

Denying plaintiffs, parents of a deceased who died with a surviving wife and child, wrongful death damages was not violative of Vt. Const. ch. I, art. 4. This article does not create substantive rights; it merely provides access to the courts. There was no statutory or common-law cause of action for plaintiffs' injuries resulting from their son's death. Quesnel v. Town of Middlebury, 167 Vt. 252, 706 A.2d 436 (1997).

2. Construction with other laws.

Because, under the Wrongful Death Act, damages are based on the loss suffered by the statutory beneficiaries, the spouse and the next of kin, these beneficiaries may not disclaim their status, in favor of the decedent's parents, by executing a disclaimer pursuant to the Uniform Disclaimer of Property Interests Act. Quesnel v. Town of Middlebury, 167 Vt. 252, 706 A.2d 436 (1997).

Where parties to wrongful death action reached a settlement which provided benefits for deceased's minor child, court did not have authority under section 2643 of this title, requiring approval of release on behalf of a minor, to reject the settlement and compel the parties to go to trial, since the wrongful death claim belonged to deceased's estate and there was no cause of action of a minor subject to release, a prerequisite for operation of section 2643. Estate of Tilton v. Lamoille Superior Court, 148 Vt. 213, 531 A.2d 919 (1987).

Where death occurs, two causes of action may arise, one in favor of the decedent for his loss and suffering resulting from the injury in his lifetime, the other founded on his death, or on the damages resulting from his death to his widow and next of kin, and both actions are to be prosecuted in point of form in the name of his personal representative, but the damages in the two suits are given upon entirely different principles, and for different purposes. Needham v. Grand Trunk Railway, 38 Vt. 294 (1865).

3. Action by ancillary administrator.

Under 14 V.S.A. § 1492(a), a wrongful death action shall be brought within two years of death by the personal representative, not by the beneficiary of the estate, and the minority of the beneficiary of the estate does not bar the commencement of the action nor does it provide the administrator with any grounds for postponing action. Leo v. Hillman, 164 Vt. 94, 665 A.2d 572 (1995).

Without the authorization of ancillary letters of administration issued in Vermont, a plaintiff administratrix appointed in a foreign jurisdiction lacks capacity to maintain a wrongful death action in Vermont. Dutil v. Mayette, 395 F. Supp. 922 (D. Vt.), aff'd, 517 F.2d 936 (2d Cir. 1975).

Foreign administrator was without standing to procure a judgment or settle a claim under this section without the aid of ancillary administration in this state. Weinstein v. Medical Center Hospital, 358 F. Supp. 297 (D. Vt. 1972).

4. Pleadings.

Administrator's complaint that as a result of auto accident his decedent was injured and the injuries resulted in his death, and he had been living with his parents and rendering them services and was survived by them, and the action was for their benefit, however inarticulate, clearly pled a cause of action for wrongful death. Parent v. Beeman, 138 Vt. 607, 420 A.2d 866 (1980).

Where declaration alleged that death resulted from tortious act of the defendant, that deceased left a widow and next of kin, and that plaintiff was his personal representative, this showed a cause of action under this section and section 1491 of this title without the further allegation that the suit was brought for the benefit of such widow and next of kin. Westcott v. Central Vermont Railroad, 61 Vt. 438, 17 A. 745 (1889).

5. Joinder of claims.

A count for the defendant's neglect, whereby intestate suffered damages in his lifetime, could be joined with a count for defendant's neglect resulting in death of intestate and brought for benefit of next of kin. Preston v. St. Johnsbury & Lake Champlain Railroad, 64 Vt. 280, 25 A. 486 (1891).

6. Limitation of actions .

It is purpose of this section and of other statutes providing for limitation of actions to make necessary the bringing of an action within a reasonable time and thus prevent fraudulent and stale claims from being brought at time when witnesses have died or disappeared and documentary evidence has been lost or destroyed. Reed v. Rosenfield, 115 Vt. 76, 51 A.2d 189 (1947).

*7. Construction with other laws.

Section 1492(a) prescribes a limitation period that is necessarily determinable where facts are known and indisputable; accordingly, a claim for wrongful death must be commenced within two years of the date of decedent's death, and unlike 12 V.S.A. § 512(4), which contains a discovery proviso providing that actions for personal injury shall be commenced within three years after the date of the discovery of the injury, the wrongful death statute contains no such discovery rule. Leo v. Hillman, 164 Vt. 94, 665 A.2d 572 (1995).

Section 557 of Title 12, providing that if one by or against whom an action may be brought dies before expiration of time within which such action may be commenced, then the period of limitation as to such action shall cease to operate at the date of death, and after issuance of letters testamentary or of administration the action, if the cause of action survives, may be commenced within two years, does not apply to a wrongful death action. Parent v. Beeman, 138 Vt. 607, 420 A.2d 866 (1980).

*8. Computation.

The date of accrual in a wrongful death action under § 1492(a) is a determinable fact, and in construing a statute that bases the commencement of a limitations period upon a determinable fact and does not state or imply the need to determine accrual of an action extrinsically, the court must apply the plain language of the statute, and applying this standard to § 1492(a), this section is clear on its face and neither states nor implies a discovery rule. Leo v. Hillman, 164 Vt. 94, 665 A.2d 572 (1995).

An action under this section must be commenced within two years from the date of death rather than from the date of appointment of the administrator. Mier's Administrator v. Boyer, 124 Vt. 12, 196 A.2d 501 (1963).

*9. Absence from state.

While the word "accrues" appears three times in 14 V.S.A. § 1492, all such references are to defendants who are out of state when the wrongful death action accrues and are not to be interpreted as incorporating a discovery rule to the section; rather, § 1492(a) fixes the accrual date with clarity such that discovery is not an issue. Leo v. Hillman, 164 Vt. 94, 665 A.2d 572 (1995).

The purpose of the tolling provisions of wrongful death statute of limitations, which suspend the period of limitations when the defendant is out of state, is to preserve the plaintiff's right of action during the time when it is impossible to serve process personally on a defendant or attach his property within the state. Thayer v. Herdt, 155 Vt. 448, 586 A.2d 1122 (1990).

Where a defendant is amenable to service of process under statute extending jurisdiction over individual parties to the extent permitted by the due process clause and procedural rule governing personal service outside the state, the tolling provisions of statute of limitations applicable to wrongful death actions do not apply. Thayer v. Herdt, 155 Vt. 448, 586 A.2d 1122 (1990).

Fact that defendant's decedent was dead at all times material did not mean that he was "out of state" within meaning of subsection (a) of this section. Parent v. Beeman, 138 Vt. 607, 420 A.2d 866 (1980).

Periods of limitation provided by this section and section 557 of Title 12 are not suspended by reason of defendant's absence from state where substituted service under section 891 of Title 12 is available. Law's Administrator v. Culver, 121 Vt. 285, 155 A.2d 855 (1959).

When a defendant is amenable to process by service on commissioner of motor vehicles, under section 891 of Title 12, the time of his absence from and nonresidence in the state is not excluded from the two-year period provided in this section. Reed v. Rosenfield, 115 Vt. 76, 51 A.2d 189 (1947).

10. Damages .

Although evidence that the plaintiff, decedent's widow, had been involved in an extramarital affair was relevant to claims for loss of companionship or loss of consortium, the court's admission of additional evidence concerning the homosexual nature of the extramarital affair was an abuse of discretion. Mears v. Colvin, 171 Vt. 655, 768 A.2d 1264 (mem.) (2000).

Although evidence that the decedent had provided his adult daughters with minimal financial or emotional support and that they had not visited decedent when he was hospitalized was relevant to the quality of the father-daughter relationship and the claim for loss of companionship and society, the court's admission of additional evidence concerning the out-of-wedlock teenage pregnancies of the daughters was an abuse of discretion. Mears v. Colvin, 171 Vt. 655, 768 A.2d 1264 (mem.) (2000).

It is inappropriate that a minor child may recover pecuniary loss under subsection (b) of this section if a parent is killed, but not if the parent is rendered permanently comatose. Hay v. Medical Center Hospital, 145 Vt. 533, 496 A.2d 939 (1985).

Damages recoverable for death of person are limited to pecuniary loss or injury which next of kin of deceased suffer by reason of his death. Needham v. Grand Trunk Railway, 38 Vt. 294 (1865); D'Angelo v. Rutland Railway Light & Power Co., 100 Vt. 135, 135 A. 598 (1926); Allen v. Moore, 109 Vt. 405, 199 A. 257 (1938).

*11. Pecuniary injuries.

The term "pecuniary injuries" in subsection (b) of this section does not limit recovery to purely economic losses. Mobbs v. Central Vermont Railway, 150 Vt. 311, 553 A.2d 1092 (1988).

Pecuniary injuries resulting from wrongful death cannot be presumed. Mobbs v. Central Vermont Railway, 150 Vt. 311, 553 A.2d 1092 (1988).

Destruction of reasonable expectation by next of kin of deriving some pecuniary advantage or benefit from continuance of life of deceased will sustain action. D'Angelo v. Rutland Railway Light & Power Co., 100 Vt. 135, 135 A. 598 (1926).

*12. Next of kin.

Because the term "next of kin" in the wrongful death act should carry the same meaning as it does in the laws of descent, brothers and sisters of a decedent can be next of kin entitled to recover damages under the act. Dubaniewicz v. Houman, 180 Vt. 1, 910 A.2d 897 (September 15, 2006).

The term "next of kin" properly denotes those persons most nearly related to the decedent by blood. Whitchurch v. Perry, 137 Vt. 464, 408 A.2d 627 (1979).

If damages are to be recovered in a wrongful death action, next of kin must exist within meaning of provision that amount recovered shall be for the benefit of the spouse and next of kin, and if next of kin cannot be ascertained, computation of damages is impossible. Whitchurch v. Perry, 137 Vt. 464, 408 A.2d 627 (1979).

Where plaintiff and his wife agreed to adopt child and, while undergoing a six month waiting period before decree of final adoption could issue, they had custody of the child, and the child died while being treated in a hospital for a burn, and plaintiff, as administrator of child's estate, brought a wrongful death action against doctor, and hospital, and this section provided that amounts recovered were for benefit of the "next of kin," an equitable adoption, even were it decreed, would not confer next of kin status on the plaintiff and his wife so as to entitle them to maintain a wrongful death claim despite fact final adoption had not been decreed , and lower court properly granted defendants summary judgment. Whitchurch v. Perry, 137 Vt. 464, 408 A.2d 627 (1979).

*13. Death of child.

Amendment to this section providing damages for loss of companionship where decedent is a minor child did not foreclose an award of such damages to parents of an adult decedent; amendment was not intended to restrict development of case law, and did not expressly restrict damages available under this subchapter, which must be construed with its remedial purpose in mind. Clymer v. Webster, 156 Vt. 614, 596 A.2d 905 (1991).

In determining whether and what amount of damages are appropriate for loss of a child's companionship under this section, court or jury should consider the physical, emotional, and psychological relationship between the parents and the child, and should examine the living arrangements of the parties, the harmony of family relations, and the commonality of interests and activities. Clymer v. Webster, 156 Vt. 614, 596 A.2d 905 (1991).

Loss of the comfort and companionship of an adult child is a real, direct and personal loss that can be measured in pecuniary terms, and damages for such loss may constitute "pecuniary injuries" within meaning of subsection (b) of this section. Clymer v. Webster, 156 Vt. 614, 596 A.2d 905 (1991).

Woman killed by drunk driver was "injured in person" within meaning of Dram Shop Act, and because she would have been entitled to maintain action under that statute had she survived, her parents could recover damages available to them under this section. Clymer v. Webster, 156 Vt. 614, 596 A.2d 905 (1991).

Where decedent is a minor child, recovery for "loss of love and companionship of the child," and "destruction of the parent-child relationship," under subsection (b) of this section, includes grief and mental anguish. Hartnett v. Union Mutual Fire Insurance Co., 153 Vt. 152, 569 A.2d 486 (1989).

In case of death of minor child, damages are not confined to loss of services during minority, but may, upon proper showing, include damages for loss of reasonably expected pecuniary benefit accruing after minority; in such case there should be considered the character, ability and willingness of deceased to help his parents, condition and necessities of parents, mutual relations of parents and child, and their probable future course of conduct with reference to each other. Butterfield v. Community Light & Power Co., 115 Vt. 23, 49 A.2d 415 (1946).

In action to recover for death of minor, where there was no evidence of reasonable expectancy of pecuniary benefit from the continuance of her life after reaching majority, damages were limited to value of her services during remainder of her minority. Allen v. Moore, 109 Vt. 405, 199 A. 257 (1938).

*14. Death of parent.

In determining pecuniary loss to minor children from death of father, it was proper to consider, so far as evidence permits, the physical, moral and intelligent training which they would have received from him during their minority had he lived. Hoadley v. International Paper Co., 72 Vt. 79, 47 A. 169 (1899).

*15. Determination of amount.

Under subsection (c) of this section, the county court or superior judge has jurisdiction to determine the net amount recovered by an action for wrongful death and the probate court is bound by such judgment of the county court or superior judge to make its decree pursuant to such judgment. In re Brown Estate, 129 Vt. 230, 275 A.2d 1 (1971).

*16. Nominal.

In actions brought solely for recovery provided for in section 1491 of this title, nominal damages cannot be recovered. Woodcock's Administrator v. Hallock, 98 Vt. 284, 127 A. 380 (1925).

*17. Evidence.

In action for wrongful death of a minor child, court properly held that expert testimony on the issue of parental grief and mental anguish was not required. Hartnett v. Union Mutual Fire Insurance Co., 153 Vt. 152, 569 A.2d 486 (1989).

Plaintiff's constitutional right to a remedy at law for decedent's death was not violated by trial court's decision to grant defendant's motion for a directed verdict on the basis of a lack of proof of any damages. Mobbs v. Central Vermont Railway, 150 Vt. 311, 553 A.2d 1092 (1988).

Lack of evidence as to the relationship between deceased and her brother other than the legal existence of the brother-sister relationship and lack of evidence concerning pecuniary injuries or damages for loss of love and companionship foreclosed recovery for wrongful death by deceased's brother. Mobbs v. Central Vermont Railway, 150 Vt. 311, 553 A.2d 1092 (1988).

Where plaintiff's decedent was killed when his motorcycle hit a truck, and he had been discharged from the marines the previous month, had sent $1,200 to his parents the last year in service, was close to them, and was not married, direction of a verdict for defendant in negligence action, on the ground that the proof of damages was insufficient, was error, for evidence was disclosed that might have warranted damages. Johnson v. Hoisington, 134 Vt. 544, 367 A.2d 680 (1976).

Damages recoverable for death of persona re to be determined upon evidence of same character and quantum as required in ordinary cases. Allen v. Moore, 109 Vt. 405, 199 A. 257 (1938).

To warrant recovery for loss of services of decedent there must be some evidence from which their value may be at least inferred. Allen v. Moore, 109 Vt. 405, 199 A. 257 (1938).

In proving damages under this section it was permissible to show not only the earnings of deceased but also that they were largely used for his wife and children, as this relates to pecuniary injury suffered by decedent's spouse and children. Director General of Railroads v. Platt, 265 F. 918 (2d Cir. 1920).

Intestate's cause of action cannot be taken into account in assessing damages. Needham v. Grand Trunk Railway, 38 Vt. 294 (1865).

*18. Distribution.

In distributing the proceeds of a third wrongful-death settlement to the decedent's spouse and daughters, the trial court properly found that it was not bound by a prior order and that apportionment of the third settlement should be measured, in part, by the parties' current circumstances, which were reflected in its decision to reduce one child's percentage based on the fact that she was no longer a minor. It failed, however, to apply this principle consistently to the other beneficiaries or the proceeding as a whole by restricting the daughters' introduction of additional evidence relevant to the distribution of the third settlement in proportion to the injuries from their loss. In re Estate of Dezotell, 201 Vt. 268, 140 A.3d 797 (2016).

Wrongful death statute did not authorize a superior court to control how the proceeds from a wrongful death suit were used or invested after distribution. Here, the probate court had the powers to properly supervise the actions of fiduciaries for the protection of a minor ward; thus, the superior court should have released the settlement proceeds from a wrongful death suit to the ward's grandmother as financial guardian. In re Willey, 189 Vt. 536, 14 A.3d 954 (mem.) (2010).

Distribution of proceeds in wrongful death action is determined by superior court, and while probate courts decree proceeds, their role is ministerial, to follow direction of superior court. Calhoun v. Blakely, 152 Vt. 113, 564 A.2d 590 (1989).

Proceeds from settlement of New Hampshire wrongful death action became part of decedent's estate under New Hampshire law, and probate court rather than superior court had jurisdiction to distribute proceeds. Calhoun v. Blakely, 152 Vt. 113, 564 A.2d 590 (1989).

Under this section, distribution is to be in direct proportion to pecuniary injuries suffered from wrongful death, a factor not considered in distribution of ordinary estate assets. Bassett v. Vermont Tax Dept., 135 Vt. 257, 376 A.2d 731 (1977).

By the 1961 amendment to this section, the net proceeds of the recovery, whether by settlement or action, must be decreed by the probate court having jurisdiction of the decedent's estate, and it is mandatory that the court decree the distribution of the amount recovered pursuant to the final judgment order of the county court or superior judge. Weinstein v. Medical Center Hospital, 358 F. Supp. 297 (D. Vt. 1972).

Any moneys recovered by an administrator for wrongful death are assets in his hands, not to pay debts of deceased, but only for distribution to those entitled thereto. Abbott v. Abbott, 112 Vt. 449, 28 A.2d 375 (1942).

Although administrator holds moneys recovered for wrongful death as trustee, the execution of that trust in all its details must be overseen by probate court and determined by decree of that court. Abbott v. Abbott, 112 Vt. 449, 28 A.2d 375 (1942).

*19. Status prior to probate court decree.

Prior to decree of the probate court, moneys recovered for wrongful death are held under a trust not yet terminated, and an action at law may not be maintained by a beneficiary for recovery thereof. Abbott v. Abbott, 112 Vt. 449, 28 A.2d 375 (1942).

20. Attorney's fees.

In wrongful death actions the administrator has the burden to produce evidence that he had entered into an agreement upon fees with counsel and himself which was fair and satisfactorily carried out, or that the compensation sought for the legal services rendered was a reasonable one under the circumstances. In re Brown Estate, 129 Vt. 230, 275 A.2d 1 (1971).

21. Assumption of risk.

In action by next of kin of deceased brakeman against employer assumption by brakeman of obvious and known risks was a good defense. Skinner v. Central Vermont Railway, 73 Vt. 336, 50 A. 1099 (1901).

22. Contributory negligence.

Administratrix must prove affirmatively that no negligence of deceased contributed to the proximate cause of his death. Cummings v. Whitney, 203 F.2d 354 (2d Cir. 1953).

In action by administrator under this section, for benefit of parents, as next of kin, for death of child by wrongful act, action being right and interest of parents, their negligence, proximately contributing to the injury, bars recover. Butterfield v. Community Light & Power Co., 115 Vt. 23, 49 A.2d 415 (1946).

In action to recover for death of plaintiff's intestate who was struck by a train at grade crossing, burden of showing freedom from contributory negligence was on plaintiff. Goodwin v. Gaston, 103 Vt. 357, 154 A. 772 (1931).

In action by an administrator, under this section, to recover pecuniary damages to father and mother, as next of kin, of boy of ten years, run over and killed through negligence of defendant street railway company, since action was not in the right or interest of the decedent, but in that of the next of kin and it would be unjust for them to recover damages of their own causing, their proximate negligence, contributing to the injury, would be a bar; but if that negligence was the remote, not the proximate, cause of the injury, it could not be a bar. Ploof v. Burlington Traction Co., 70 Vt. 509, 41 A. 1017 (1898).

23. Common-law right of action.

A common-law right of action for wrongful death, to provide relief to parents who are not statutory next of kin, does not exist. Quesnel v. Town of Middlebury, 167 Vt. 252, 706 A.2d 436 (1997).

Cited. Fay v. Kent, 55 Vt. 557 (1883); Legg v. Britton, 64 Vt. 652, 24 A. 1016 (1892); Boyden v. Fitchburg Railroad, 70 Vt. 125, 39 A. 771 (1897); Carty's Administrator v. Village of Winooski, 78 Vt. 104, 62 A. 45 (1905); Wetherby's Administrator v. Twin State Gas Co., 83 Vt. 189, 75 A. 8 (1910); McNamara v. Dionne, 298 F.2d 352 (2d Cir. 1962); Vaillancourt v. Medical Center Hospital of Vermont, Inc., 139 Vt. 138, 425 A.2d 92 (1980); State v. Oliver, 151 Vt. 626, 563 A.2d 1002 (1989); Fortier v. Byrnes, 165 Vt. 189, 678 A.2d 890 (1996).

CHAPTER 73. PROCEEDINGS FOR RECOVERY OF PROPERTY EMBEZZLED AND FRAUDULENTLY CONVEYED

Sec.

History

Applicability of 2017 (Adj. Sess.) amendment. 2017, No. 195 (Adj. Sess.), § 19 provides: "This act [which amended this chapter] shall take effect on July 1, 2018 and shall apply to wills executed or offered for admission on or after that date."

§ 1551. Person suspected of embezzlement, concealing papers, or conveying decedent's property.

  1. An executor or administrator, heir, legatee, creditor, or other person interested in the estate of a deceased person may file a motion for discovery in the Probate Division of the Superior Court alleging that a person is suspected of having concealed, embezzled, or conveyed any of the deceased's property, or has possession or knowledge of any deed, conveyance, bond contract, or other writing that contains evidence of, or tends to disclose, the right, title, interest, or claim of the deceased to real or personal estate, or the last will and testament of the deceased.
  2. The court may subpoena or otherwise order a person to appear before it to be examined under oath upon the matter or to answer interrogatories or requests to produce to be filed with the court. If the person so ordered refuses to appear and submit to examination or to answer interrogatories, the person may be subject to proceedings for civil contempt under 12 V.S.A. § 122 . Interrogatories and answers to interrogatories shall be in writing, signed under oath by the party examined, and filed with the court.

    Amended 1985, No. 144 (Adj. Sess.), § 71; 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011; 2017, No. 195 (Adj. Sess.), § 8.

History

Source. V.S. 1947, § 2945. P.L. § 2878. G.L. § 3333. P.S. § 2858. V.S. § 2470. R.L. § 2157. G.S. 52, § 7. R.S. 48, § 7. 1821, p. 54. R. 1797, p. 237, § 63. R. 1787, p. 52.

Revision note. Inserted a comma following "embezzlement" in the section heading for purposes of clarity.

Substituted "commissioner of corrections" for "jail of the county" pursuant to 1971, No. 199 (Adj. Sess.), § 17.

Amendments--2017 (Adj. Sess.). Rewrote section.

Amendments--2009 (Adj. Sess.) Substituted "probate division of the superior court" for "probate court" twice.

Amendments--1985 (Adj. Sess.). Section amended generally.

Cross References

Cross references. Embezzlement by executor or administrator, see § 2534 of Title 13.

Subpoenas generally, see Rule 45, Vermont Rules of Probate Procedure.

ANNOTATIONS

Analysis

1. Other remedies.

Heir of insane person could, after his decease, maintain a suit in equity for an accounting to estate against intermeddlers, although one of them was the administratrix of estate and other had presented a claim against it. Bailey v. Bailey, 67 Vt. 494, 32 A. 470 (1894).

2. Appeal from order compelling discovery.

Where proceeding is commenced by executor in pursuance of this section for purpose of compelling defendant to make a discovery, under oath, as to property of estate in his hands, case must be finished in the probate court, before an appeal can be taken from that court to the county court; appeal from order, made by probate court that defendant answer certain interrogatories is premature and will be dismissed, on motion. Kimball v. Kimball, 19 Vt. 579 (1847).

§ 1552. Person entrusted with estate may be compelled to render account.

On motion of an executor or administrator, the court may order a person who is entrusted by an executor or administrator with any part of the estate of the deceased person to appear under oath and render a full accounting of the property. If the person so ordered refuses to appear and render an account, the person may be subject to proceedings for civil contempt under 12 V.S.A. § 122 .

Amended 1985, No. 144 (Adj. Sess.), § 72; 2017, No. 195 (Adj. Sess.), § 8.

History

Source. V.S. 1947, § 2946. P.L. § 2879. G.L. § 3334. P.S. § 2859. V.S. § 2471. R.L. § 2158. G.S. 52, § 8. R.S. 48, § 8. 1821, p. 34. R. 1797, p. 238, § 64.

Amendments--2017 (Adj. Sess.). Rewrote section.

Amendments--1985 (Adj. Sess.). Substituted "motion" for "the complaint" preceding "of an executor or administratore" and "into the person's" for "to his" preceding "possession" in the first sentence, deleted "probate" preceding "court may cite" in the first sentence and "against him" following "proceed" in the second sentence, and made other minor stylistic changes throughout the section.

Cross References

Cross references. Subpoenas generally, see Rule 45, Vermont Rules of Probate Procedure.

§ 1553. Forfeiture by person embezzling before letters issued.

If a person embezzles or converts any of the property of a decedent before the appointment of the executor or administrator, the person shall be liable to the executor or administrator of the estate for double the value of the property embezzled or converted, to be recovered for the benefit of the estate.

Amended 2017, No. 195 (Adj. Sess.), § 8.

History

Source. V.S. 1947, § 2947. P.L. § 2880. G.L. § 3335. P.S. § 2860. V.S. § 2472. R.L. § 2159. G.S. 51, § 10. R.S. 47, § 10. 1821, p. 55. R. 1797, p. 237, § 62. R. 1787, p. 52.

Amendments--2017 (Adj. Sess.). Rewrote section.

ANNOTATIONS

Analysis

1. Purpose.

It was object of this section to provide a remedy for executor or administrator, in case of an embezzlement or alienation of goods of deceased, and to take away the right of a creditor, at common law, of charging the person guilty of the embezzlement or alienation as executor de son tort. Roys v. Roys, 13 Vt. 543 (1841).

2. Intent.

Where defendants fraudulently concealed effects of deceased before administration granted, with intent of finally converting same to their own use, but which administrator afterwards found in their possession, it was embezzlement under this section. Spaulding v. Cook, 48 Vt. 145 (1875).

To bring a case within this section, the act complained of must, at least, be done with the intent of wrongfully abstracting property from the estate of deceased, to the injury of its assets. Batchelder v. Tenney, 27 Vt. 578 (1855).

To subject person to penalty under this section, he must have acted from a wrong motive, and mala fide, and is entitled to have case made out against him by full proof. Roys v. Roys, 13 Vt. 543 (1841).

§ 1554. Recovery of estate fraudulently conveyed by deceased.

  1. If the executor or administrator determines there is a deficiency of assets in the estate, the fiduciary may bring an action in the Probate Division of the Superior Court for the benefit of the creditors to recover any property fraudulently conveyed by the deceased in his or her lifetime.
  2. The court may license the executor or administrator to sell so much of the property fraudulently conveyed as is necessary to make up the deficiency of assets in the estate to pay the debts of the decedent if it appears to the court that:
    1. there are insufficient assets to pay the debts of the deceased;
    2. the deceased conveyed property or a right or interest therein:
      1. with the intent to defraud creditors;
      2. to avoid a debt or duty; or
      3. with respect to real estate, in a manner that by law renders the conveyance void as against his or her creditor; and
    3. the estate attempted to be conveyed would be subject to attachment or execution by a creditor of the deceased in his or her lifetime.

      Amended 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011; 2017, No. 195 (Adj. Sess.), § 8.

History

Source. V.S. 1947, § 2948. 1947, No. 202 , § 2971. P.L. § 2881. G.L. § 3336. P.S. § 2861. V.S. § 2473. R.L. § 2160. G.S. 52, § 43. R.S. 48, § 37. 1831, No. 18 , § 2.

Amendments--2017 (Adj. Sess.). Rewrote section.

Amendments--2009 (Adj. Sess.) Substituted "probate division of the superior court" for "probate court."

Cross References

Cross references. License to sell and convey real and personal estate, see § 1611 et seq. of this title.

ANNOTATIONS

1. Title of grantee of fraudulent sale.

A voluntary or fraudulent conveyance vests the legal title in the grantee, subject only to be divested by the creditors of the grantor, if they choose to impeach it; the word "void" in this section means voidable only. Jones v. Williams, 94 Vt. 175, 109 A. 803 (1920).

§ 1555. Sale, how conducted.

The license to sell the real estate shall be granted and the sale conducted as provided for the sale of real estate for the payment of the debts of a deceased person. The sale and conveyance so made by the executor or administrator shall be valid and effectual to convey the real estate.

Amended 2017, No. 195 (Adj. Sess.), § 8.

History

Source. V.S. 1947, § 2949. P.L. § 2882. G.L. § 3337. P.S. § 2862. V.S. § 2474. R.L. § 2161. G.S. 52, § 44. R.S. 48, § 38. 1831, No. 18 , § 2.

Amendments--2017 (Adj. Sess.). Substituted "the" for "such" preceding "real estate" in two places.

Cross References

Cross references. License to sell and convey real and personal property, see § 1611 et seq. of this title.

ANNOTATIONS

1. Notice.

It was not necessary to notify heirs and legatees before order of sale made by probate court, pursuant to this section. Harrington & Kittredge v. Gage, 6 Vt. 532 (1834).

§ 1556. Repealed. 2017, No. 195 (Adj. Sess.), § 8.

History

Former § 1555. Former § 1555, relating to how to conduct sales, was derived from V.S. 1947, § 2949; P.L. § 2882; G.L. § 3337; P.S. § 2862; V.S. § 2474; R.L. § 2161; G.S. 52, § 44; R.S. 48, § 38; 1831, No. 18 , § 2.

Annotations From Former § 1556

1. Prior law.

Prior to enactment of this section an administrator could not set aside fraudulent conveyance, since right belonged solely to the creditors, whom he did not represent. Peaslee v. Barney, 1 D. Chip. 331 (1814); Administrator of Martin v. Martin, 1 Vt. 91 (1828); Lynch's Administrator v. Murray, 81 Vt. 97, 69 A. 133 (1908).

2. Construction.

This section should be liberally construed. Lynch's Administrator v. Murray, 86 Vt. 1, 83 A. 746 (1912).

3. Fraudulent conveyances .

Administrator of a person who has conveyed his entire property to secure support of himself and wife, without making provision for the payment of his debts, may maintain, for benefit of creditors, a proper action for recovery of the same under this section. Pease v. Shirlock, 63 Vt. 622, 22 A. 661 (1891).

*4. Preference to creditors.

Conveyance without consideration to prefer certain creditors could be set aside where assets of state were insufficient. McLane v. Johnson, 43 Vt. 48 (1870).

*5. Exempt homestead.

Owner of an exempt homestead may convey it even if he does so with intent to place it beyond reach of his creditors. Morse v. Andrews, 112 Vt. 456, 28 A.2d 393 (1942).

*6. Liability in threatened suit.

Where decedent, on being threatened with a suit that he in good faith believed was unfounded and unjust, in order to make himself execution-proof, conveyed farm to defendant without any consideration, except that defendant assumed mortgage and agreed to reconvey to decedent when threatened suit was settled, conveyance was without sufficient consideration, and fraudulent as against rights of creditor in threatened suit, so could be set aside by decedent's administrator in favor of subsequent creditors. Lynch's Administrator v. Murray, 86 Vt. 1, 83 A. 746 (1912).

7. Deficiency in assets required for action.

If there is a deficiency of assets at any time during his administration, an administrator may sue to set aside a fraudulent conveyance. Lynch's Administrator v. Murray, 86 Vt. 1, 83 A. 746 (1912).

This section should extend only to cases where fraud would, without such action, prove prejudicial to assets of the estate. Allen v. Mower, 17 Vt. 61 (1843).

8. Disbursements by grantee.

When intestate's conveyance is set aside as fraud against his creditors, defendant will not be allowed his disbursements for taxes, insurance, and payments of interest on mortgage assumed by him, where those payments were necessary to give color of good faith to fraudulent transaction. Lynch's Administrator v. Murray, 86 Vt. 1, 83 A. 746 (1912).

9. Determination whether assets deficient .

Expenses of such suit cannot be considered in determining whether there was a deficiency of assets when it was begun, yet, if the administrator prevails in that litigation, his expenses therein, including attorney's fees, should be satisfied out of the property fraudulently conveyed. Lynch's Administrator v. Murray, 86 Vt. 1, 83 A. 746 (1912).

*10. Property unaccounted for by executor or administrator.

Fact that, if decedent's executor had accounted for certain personalty that came into his hands, or if his bondsmen had been sued for his failure to do so, there would have been no deficiency of assets, is no defense, for defendant cannot retain advantage of his fraud by relying on the misdoings of decedent's executor, nor is liability of an executor's bondsmen an asset of the estate. Lynch's Administrator v. Murray, 86 Vt. 1, 83 A. 746 (1912).

*11. Administration and funeral expenses.

In determining whether there is deficiency of assets there should be considered not only claims allowed by commissioners, but also burial and administration expenses. Lynch's Administrator v. Murray, 86 Vt. 1, 83 A. 746 (1912).

*12. Review.

Whether there was deficiency of assets when suit was brought is question of mixed law and fact, and so finding of master that there was deficiency is conclusive, unless made through some mistake of law. Lynch's Administrator v. Murray, 86 Vt. 1, 83 A. 746 (1912).

§ 1557. Sale of fraudulently conveyed estate; motion of creditors.

  1. An executor or administrator shall not be bound to make sale of estate, so fraudulently conveyed, under a license from the Probate Division of the Superior Court, nor sue for the estate for the benefit of the creditors unless on motion of creditors of the deceased, nor unless the creditors filing the motion pay that part of the costs and expenses, or give security to the executor or administrator as the court judges equitable.
  2. An executor or administrator shall not be required to sell fraudulently conveyed property under a license from the Probate Division of the Superior Court, or sue for the fraudulently conveyed property for the benefit of the creditors unless the creditors of the deceased file a motion to do so and comply with any court requirements to pay associated costs and expenses or give security to the executor or administrator.

    Amended 1985, No. 144 (Adj. Sess.), § 73; 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011; 2017, No. 195 (Adj. Sess.), § 8.

History

Source. V.S. 1947, § 2951. 1947, No. 202 , § 2974. P.L. § 2884. G.L. § 3339. P.S. § 2864. V.S. § 2476. R.L. § 2163. G.S. 52, § 46. R.S. 48, § 40. 1838, No. 18 , § 1.

Revision note. In the section heading, substituted "motion" for "application" for purposes of conformity with the text of the section, as amended.

Amendments--2017 (Adj. Sess.). Redesignated the existing text as subsec. (a) and added subsec. (b).

Amendments--2009 (Adj. Sess.) Substituted "probate division of the superior court" for "probate court."

Amendments--1985 (Adj. Sess.). Substituted "motion" for "application" following "creditors unless on" and "filing the motion" for "making the application" preceding "pay", deleted "such" preceding "security" and "therefor" thereafter and "probate" preceding "court", and made other minor stylistic changes throughout the section.

§ 1558. Creditor may act.

  1. If there is a deficiency of assets in the estate, any creditor of the estate who obtains a license to do so from the Probate Division of the Superior Court may bring an action in the name of the executor or administrator in the Probate Division to recover any property fraudulently conveyed by the deceased in his or her lifetime. The action shall be for the benefit of the creditors and shall be brought in the same manner as an action by the executor or administrator under section 1554 of this title. A creditor licensed by the court to bring an action under this section may recover any property conveyed by the deceased in his or her lifetime by a fraudulent or void conveyance.
  2. An action under this section shall not be commenced until the creditor files with the court a bond with sufficient sureties conditioned to indemnify the executor or administrator against the costs of the action.
  3. A creditor who brings an action under this section shall have a lien upon the judgment recovered by him or her for the costs incurred and any other expenses the court deems equitable.

    Amended 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011; 2017, No. 195 (Adj. Sess.), § 8.

History

Source. V.S. 1947, § 2952. P.L. § 2885. G.L. § 3340. P.S. § 2865. V.S. § 2477. R.L. § 2164. G.S. 52, § 47. 1854, No. 16 , § 1.

Revision note. Deleted "at law or in equity" following "action" in the first sentence to conform reference to Rule 2, Vermont Rules of Civil Procedure, pursuant to 1971, No. 185 (Adj. Sess.), § 236(d). See note set out under § 219 of Title 4.

Amendments--2017 (Adj. Sess.). Rewrote section.

Amendments--2009 (Adj. Sess.) Substituted "probate division of the superior court" for "probate court."

Cross References

Cross references. Probate bonds generally, see § 2101 et seq. of this title.

ANNOTATIONS

Analysis

1. Cause of action.

Cause of action and right to maintain a suit under this section was made out, if the conveyance was voluntary, if adequate provision was not then made for payment of existing creditors, and if ultimately there was a deficiency of assets to pay such creditors. Jones v. Williams, 94 Vt. 175, 109 A. 803 (1920).

2. Moral obligation as consideration.

Moral obligation arising from services performed by members of one's family without a contract for payment, was not a valid consideration for a conveyance which left grantor without sufficient property to pay his debts. Fair Haven Marble & Marbleized Slate Co. v. Owens, 69 Vt. 246, 37 A. 749 (1896).

3. Limitation on property set aside.

In absence of actual intent to defraud, conveyance will be set aside only to extent necessary to protect creditors. Fair Haven Marble & Marbleized Slate Co. v. Owens, 69 Vt. 246, 37 A. 749 (1896).

4. Parties.

When administratrix was grantee in alleged fraudulent conveyance, a creditor could not, by leave of probate court, proceed in name of administratrix, but could, without such leave, maintain a suit in his own name to set aside conveyance. Farmer's National Bank v. Thomson, 74 Vt. 442, 52 A. 961 (1902).

§ 1559. Repealed. 2017, No. 195 (Adj. Sess.), § 8.

History

Former § 1559. Former § 1559, relating to creditor's lien, was derived from V.S. 1947, § 2953; P.L. § 2886; G.L. § 3341; P.S. § 2866; V.S. § 2478; R.L. § 2165; G.S. 52, § 48; 1854, No. 16 , § 2; and amended by 2009, No. 154 (Adj. Sess.), § 238a.

CHAPTER 75. LICENSE TO SELL AND CONVEY REAL AND PERSONAL PROPERTY

SUBCHAPTER 1. GENERAL PROVISIONS

SUBCHAPTER 2. LICENSES TO SELL-PROCEDURE

History

Applicability of 2017 (Adj. Sess.) amendment. 2017, No. 195 (Adj. Sess.), § 19 provides: "This act [which amended this chapter] shall take effect on July 1, 2018 and shall apply to wills executed or offered for admission on or after that date.

Cross References

Cross references. Mortgages and leases by executors or administrators, see § 2201 et seq. of this title.

Service of motion for license to sell, see Rule 5.1, Vermont Rules of Probate Procedure.

Subchapter 1. General Provisions

§ 1611. Court may order personal and real estate sold.

The Probate Division of the Superior Court may order the sale of all or part of the personal or real estate of the estate when it appears necessary or beneficial for the administration of the estate.

Amended 1985, No. 144 (Adj. Sess.), § 74; 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011; 2017, No. 195 (Adj. Sess.), § 9.

History

Source. V.S. 1947, § 2957. P.L. § 2890. G.L. § 3345. P.S. § 2870. V.S. § 2482. R.L. § 2169. G.S. 54, § 4. R.S. 50, § 4. 1821, p. 47. R. 1797, p. 231, § 47.

Amendments--2017 (Adj. Sess.). Section amended generally.

Amendments--2009 (Adj. Sess.) Substituted "probate division of the superior court" for "probate court."

Amendments--1985 (Adj. Sess.). Substituted "motion" for "application" preceding "of the executor".

§§ 1612, 1613. Repealed. 2017, No. 195 (Adj. Sess.), § 9.

History

Former §§ 1612, 1613. Former § 1612, relating to realty may be sold, though personally not exhausted, was derived from V.S. 1947, § 2954; P.L. § 2887; G.L. § 3342; P.S. § 2867; V.S. § 2479; R.L. § 2166; G.S. 52, § 34; R.S. 48, § 30; 1831, No. 19 ; 1821, p. 47; R. 1797, p. 234, § 54 and amended by 1985, No. 144 (Adj. Sess.), § 75 and 2009, No. 154 (Adj. Sess.), § 238a.

Former § 1613, relating to when whole of real estate may be sold, was derived from V.S. 1947, § 2955; P.L. § 2888; G.L. § 3343; P.S. § 2868; V.S. § 2480; R.L. § 2167; G.S. 52, § 31; R.S. 48, § 27; 1821, p. 48; R. 1797, p. 234, § 55; and amended by 2009, No. 154 (Adj. Sess.), § 238a.

Annotations From Former § 1612

1. Consent by guardian of devisees.

Where son, acting as executor, sold premises, repurchased and then mortgaged them, such mortgage was not good as against the children of either himself or the daughter, born after the conveyance by him as executor, although such conveyance was under license of the probate court, and although he procured a guardian to be appointed of property of their children, who consented to granting of license. Dwight v. Eastman, 62 Vt. 398, 20 A. 594 (1890).

2. Sale of property subject to right of curtesy.

Right to occupy as tenant by curtesy was subject to be defeated by necessity of a sale of the real estate to pay wife's debts. Bennett v. Camp, 54 Vt. 36 (1882).

3. Unlicensed conveyance.

Because probate court, though it administers a complete system in settlement of decedents' estates, is not possessed of general equity powers, court of chancery will grant relief where insolvent executrix of an insolvent estate conveyed real estate thereof, without license of the probate court and in fraud of the creditors of the estate, by a deed that was not void nor voidable on its face. Wetmore & Morse Granite Co. v. Bertoli, 87 Vt. 257, 88 A. 898 (1913).

Cited. Dartmouth Savings Bank v. Estate of Schoen, 129 Vt. 315, 276 A.2d 637 (1971).

Annotations From Former § 1613

1. Injury to remainder.

Where personalty of a decedent's estate was insufficient to pay debts, and it was found that a sale of all realty would not be required for their payment, but that a part of the realty could not be sold without injury to remainder, a sale of all of the realty was authorized. In re Reynolds' Estate, 89 Vt. 224, 95 A. 498 (1915).

§ 1614. Interested persons may prevent sale; bond.

A license to sell real estate shall not be granted if any interested person gives a bond in such sum and with such sureties as the Probate Division of the Superior Court directs, conditioned to pay the debts and expenses of administration within such time as the court directs. The bond shall be for the security and may be prosecuted for the benefit of the creditors as well as of the executor or administrator.

Amended 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011; 2017, No. 195 (Adj. Sess.), § 9.

History

Source. V.S. 1947, § 2956. P.L. § 2889. G.L. § 3344. P.S. § 2869. V.S. § 2481. R.L. § 2168. G.S. 52, § 32. R.S. 48, § 28. 1821, p. 48. R. 1797, p. 232, § 49.

Amendments--2017 (Adj. Sess.). Section amended generally.

Amendments--2009 (Adj. Sess.) Substituted "probate division of the superior court" for "probate court."

Cross References

Cross references. Probate bonds generally, see § 2101 et seq. of this title.

§§ 1615, 1616. Repealed. 2017, No. 195 (Adj. Sess.), § 9.

History

Former §§ 1615, 1616. Former § 1615, relating to claims may be sold or assigned, was derived from V.S. 1947, § 2958; P.L. § 2891; G.L. § 3346; P.S. § 2871; 1896, No. 42 , § 1 and amended by 2009, No. 154 (Adj. Sess.), § 238a.

Former § 1616, relating to purchaser of claims may sue, was derived from V.S. 1947, § 2959; P.L. § 2892; G.L. § 3347; P.S. § 2872; 1896, No. 42 , § 2.

Subchapter 2. Licenses to Sell - Procedure

§ 1651. License to sell estate; procedure.

When an executor or administrator considers it necessary or beneficial to sell real or personal estate, the Probate Division of the Superior Court may grant license, when it appears necessary or beneficial, under the following regulations:

  1. The executor or administrator shall file a motion setting forth the facts that show the sale is necessary or beneficial.
  2. In cases where the consent of interested persons is required, the executor or administrator shall file their written consents with the court.
  3. In the event that the consent of interested persons is required but cannot be obtained, the court shall schedule a hearing and notice shall be given as provided in the Rules of Probate Procedure.
  4. Before license is granted, the court may require the executor or administrator to give a new bond in an amount and with sureties as the court directs, conditioned that the executor or administrator shall account for the proceeds of the sale.
  5. The executor or administrator shall be sworn before the court or before some other person authorized to administer oaths and a certificate thereof shall be returned to the court before sale under the order granting license.
  6. If the evidence satisfies the court, the court may authorize the executor or administrator to sell that part of the estate deemed necessary or beneficial, either at public or private sale, and furnish the executor or administrator a copy of the license to sell or order of sale.
  7. If the order is to sell the estate at auction, the court shall designate the manner of notice of the time and place of sale, which shall be stated in the copy of the license to sell or order of sale furnished to the executor or administrator.
  8. The copy of the license to sell or order of sale furnished to the executor or administrator shall include findings addressing the requirements of subdivisions (1) through (4) of this section. A certified copy of the license to sell real estate or order of sale shall be recorded in the office where a deed of the real property to be sold is recorded.
  9. If ordered by the court, the executor or administrator shall file a report with the Probate Division of the Superior Court on the action authorized by each license granted under this section within 60 days from the date of the sale of any real or personal property.
  10. If the power to sell all or part of the testator's real or personal estate is expressly conferred by the will, the court shall issue a license to sell to the executor or administrator without requiring notice or hearing with respect to any property subject to the testamentary power, except a dwelling house in which the surviving spouse or an heir, devisee, or legatee is residing.
  11. Notwithstanding any provision of this section, no beneficial license to sell that is inconsistent with the provisions or intent of a will shall be issued.

    Amended 1981, No. 75 ; 1985, No. 144 (Adj. Sess.), § 76; 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011; 2017, No. 195 (Adj. Sess.), § 9.

History

Source. V.S. 1947, § 2966. P.L. § 2899. G.L. § 3354. P.S. § 2879. V.S. § 2489. 1886, No. 56 . R.L. § 2176. G.S. 52, § 39. 1850, No. 14 , § 2. R.S. 48, § 33. 1821, pp. 47, 61. R. 1797, p. 232, § 49. R. 1797, p. 234, § 55.

Amendments--2017 (Adj. Sess.). Section amended generally.

Amendments--2009 (Adj. Sess.) Substituted "probate division of the superior court" for "probate court' in the introductory paragraph and in subdivs. (3)-(5) and (8) and (9).

Amendments--1985 (Adj. Sess.). Deleted "he may make application to" preceding "the probate court" and "and such court" thereafter in the introductory paragraph, substituted "a motion" for "his petition in writing" preceding "setting" in subdiv. (1), rewrote subdivs. (2) and (3), substituted "an amount" for "such sum" following "bond in" and deleted "probate" preceding "court directs" in subdiv. (4), deleted "probate" following "returned to the" in subdiv. (5), rewrote the first sentence of subdiv. (8), deleted "in such manner as the court may require" preceding "reports" in subdiv. (9), and made other minor stylistic changes throughout the section.

Amendments--1981. Subdiv. (9): Added.

Cross References

Cross references. Recording deeds generally, see § 341 of Title 27.

Recording deeds when lands lie in unorganized place, see § 403 of Title 27.

Scheduling of hearings, see Rule 40, Vermont Rules of Probate Procedure.

ANNOTATIONS

Analysis

1. Authority under license.

Authority of any executor, under license of probate court to sell real estate, could not be enlarged by his action under it beyond its legal effect. Brown v. Van Duzee, 44 Vt. 529 (1872).

2. Effect of license.

A license to sell real estate, granted by probate court, was an authority given by law as administered by probate court, and had no force except what law through action of court gave. Brown v. Van Duzee, 44 Vt. 529 (1872).

3. Title conveyed.

The word "sell" was operative word both in statute and license, and imported that whole title was to be parted with, and not that estate was to be encumbered. Brown v. Van Duzee, 44 Vt. 529 (1872).

4. Sale vacated.

Because the trial court found, and the record plainly showed, that appellant sought to defeat the plain purpose of the private nature of a sale of real property for his own planned benefit at the expense of an intestate's other heirs, the trial court properly ordered the parties to return to the status quo that existed before the sale. With all of the facts on the table, the parties could advocate, and the administrators and probate court could now decide, how best to proceed either by private or public sale, as would be most beneficial to all parties concerned. In re Estate of Doran, 187 Vt. 349, 993 A.2d 436 (2010).

Where commissioners, who had been appointed by probate court, had no duty to report to the probate court, or seek its approval, until after the property was sold and title passed, the court's order approving the contract of sale was an intermediate step and did not finally dispose of property; there was nothing in Vermont statutes that either required or prohibited this intermediate step so that its effect was to give the commissioners an advance ruling on a question that would no doubt arise when they sought approval for their post-sale report but their power to sell property was not contingent on advance approval of the probate court. Morrisseau v. Fayette, 164 Vt. 358, 670 A.2d 820 (1995).

§ 1652. Deed of executor or administrator.

The deed of an executor or administrator, who has obtained a certified copy of an order of sale or license to sell real estate from the Probate Division of the Superior Court, shall be valid to convey the real estate of a deceased person thereby authorized to be sold.

Amended 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011; 2017, No. 195 (Adj. Sess.), § 9.

History

Source. V.S. 1947, § 2967. 1947, No. 202 , § 2990. P.L. § 2900. G.L. § 3355. P.S. § 2880. V.S. § 2490. R.L. § 2177. G.S. 52, § 40. R.S. 48, § 34. 1821, p. 48. R. 1797, p. 234, § 54.

Amendments--2017 (Adj. Sess.). Section amended generally.

Amendments--2009 (Adj. Sess.) Substituted "probate division of the superior court" for "probate court."

ANNOTATIONS

Analysis

1. Title derived from executor or administrator.

A naked order or license from probate court to an administrator of a deceased person, to sell his real estate, was not sufficient to support a title derived from administrator, under such sale; but, it must appear, either from the order or from records of probate court, that such facts were found to exist, as warranted the issuing of order. Clapp v. Beardsley, 1 Aik. 168 (1826).

2. Conveyance of reversion of dower.

An administrator's deed, conveying by metes and bounds all real estate of which intestate husband died seised, "except the widow's dower," conveyed the reversion of dower. Starr v. Brewer, 58 Vt. 24, 3 A. 479 (1886).

3. Presumption.

Presumption is that administrator was duly appointed, that a license was granted by the court to sell the real estate, including reversion of dower, at private sale, for purpose of paying debts; that he properly accounted; that everything which ought to have been done in perfecting the deed was done; that it was valid. Starr v. Brewer, 58 Vt. 24, 3 A. 479 (1886).

4. Court appointed commissioners.

The court's order that real property of intestate be sold to provide widow's statutory share, and the license to commissioners, who had been appointed by the probate court, to effectuate that sale, was conclusive on the question of whether property would be sold; the license gave the commissioners full power to make the sale and convey a deed as if the deed had been executed by the deceased in his lifetime. Morrisseau v. Fayette, 164 Vt. 358, 670 A.2d 820 (1995).

Cited. Brown v. Van Duzee, 44 Vt. 529 (1872).

§ 1653. Repealed. 2017, No. 195 (Adj. Sess.), § 9.

History

Former § 1653. Former § 1653, relating to when licenses to sell is beneficial, was derived from V.S. 1947, § 2960; 1945, No. 35 ; P.L. § 2893; G.L. § 3348; P.S. § 2873; 1906, No. 84 , § 1; 1896, No. 44 , § 23; V.S. § 2483; R.L. § 2170; 1872, No. 44 ; G.S. 52, § 37; 1850, No. 14 ; R.S. 48, § 31 and amended by 1975, No. 240 (Adj. Sess.), § 5; 1983, No. 223 (Adj. Sess.); 1985, No. 144 (Adj. Sess.), § 77; 2009, No. 154 (Adj. Sess.), § 238a.

Annotations From Former § 1653

1. Particular sales.

Where estate had debts of $256 not covered by personalty it was error to grant a license to sell all 118 acres of real estate to cover the debt, and where the heirs did not receive personal notice of the proposed sale, and did not consent in writing to sell, the sale could not be upheld as a license to sell which was beneficial to the heirs. In re Estate of Bettis, 133 Vt. 310, 340 A.2d 57 (1975).

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

§ 1654. Disposal of proceeds of beneficial sale.

In case of the sale of property for the benefit of interested persons, the proceeds shall be decreed to those persons otherwise entitled to the property.

Amended 2017, No. 195 (Adj. Sess.), § 9.

History

Source. V.S. 1947, § 2961. P.L. § 2894. G.L. § 3349. P.S. § 2874. V.S. § 2484. R.L. § 2171. G.S. 52, § 38. R.S. 48, § 22.

Amendments--2017 (Adj. Sess.). Section amended generally.

§ 1655. Repealed. 2017, No. 195 (Adj. Sess.), § 9.

History

Former § 1655. Former § 1655, relating to realty taken on execution may be sold, was derived from V.S. 1947, §§ 2963, 2964; P.L. §§ 2896, 2897; G.L. §§ 3351, 3352; P.S. §§ 2876, 2877; V.S. §§ 2486, 2487; R.L. §§ 2173, 2174; G.S. 52, §§ 35, 36; 1846, No. 16 , §§ 1, 2 and amended by 2009, No. 154 (Adj. Sess.), § 238a.

§ 1656. Estate sold to pay debts and legacies in other states.

When the sale of real or personal estate is not necessary to pay the debts of the deceased person in this State, and it appears to the Probate Division of the Superior Court by the records and proceedings of a Probate Division in another state that the estate of the deceased in the other state is not sufficient to pay the debts and legacies in that state, the Probate Division of the Superior Court in this State may license the executor or administrator to sell the real or personal estate for the payment of debts and legacies in the other state, in the same manner as provided for the payment of debts and legacies in this State.

Amended 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011; 2017, No. 195 (Adj. Sess.), § 9.

History

Source. V.S. 1947, § 2962. P.L. § 2895. G.L. § 3350. P.S. § 2875. V.S. § 2485. R.L. § 2172. G.S. 52, § 42. R.S. 48, § 36. 1827, No. 11 , § 1.

Amendments--2017 (Adj. Sess.). Substituted "of" for "against" following "necessary to pay the debts" and "the" for "such" preceding "other state is not".

Amendments--2009 (Adj. Sess.) Substituted "probate division of the superior court" for "probate court" twice.

§ 1657. Real estate sold to pay legacy.

When the personal property of the estate is insufficient to satisfy a legacy given by will, the executor may be licensed by the Probate Division of the Superior Court to sell real estate of the estate for the purpose of paying the legacy.

Amended 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011; 2017, No. 195 (Adj. Sess.), § 9.

History

Source. V.S. 1947, § 2965. P.L. § 2898. G.L. § 3353. P.S. § 2878. V.S. § 2488. R.L. § 2175. G.S. 52, § 49. R.S. 48, § 41. 1821, p. 47. R. 1797, p. 234, § 54.

Amendments--2017 (Adj. Sess.). Section amended generally.

Amendments--2009 (Adj. Sess.) Substituted "probate division of the superior court" for "probate court."

§ 1658. Death, resignation, or removal of fiduciary; new license.

In case of the death, resignation, or removal of an executor or administrator before the completion of a sale of real estate under a license granted by the Probate Division of the Superior Court, on motion at any time within two years after issuing a prior license, the court may issue a new license to the successor fiduciary without further notice or hearing.

Amended 1985, No. 144 (Adj. Sess.), § 78; 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011; 2017, No. 195 (Adj. Sess.), § 9.

History

Source. V.S. 1947, § 2968. P.L. § 2901. G.L. § 3356. P.S. § 2881. V.S. § 2491. R.L. § 2178. 1872, No. 39 .

Amendments--2017 (Adj. Sess.). Section amended generally.

Amendments--2009 (Adj. Sess.) Substituted "probate division of the superior court" for "probate court."

Amendments--1985 (Adj. Sess.). Substituted "motion" for "application" preceding "at any", "a" for "such" preceding "prior" and "the" for "his" preceding "successor" and deleted "thereon" following "hearing".

§ 1659. License when deceased under contract to convey; court may grant; effect of deed.

  1. When a decedent had contracted to convey real estate and the party contracted with has performed or is ready to perform the conditions of the contract, on motion for that purpose, the Probate Division of the Superior Court may grant license to the executor or administrator of the estate to convey the lands according to the contract, including any modifications to it. If the executor or administrator is the transferee under the contract, the judge of the court shall execute the deed. The deed executed by the executor, administrator, judge, or special administrator or master appointed by the court shall be valid to convey the real estate authorized to be conveyed under the contract.
  2. The Probate Division of the Superior Court shall not grant a license to convey the real estate of a deceased person under contract if it appears to the court after hearing that the assets in the hands of the executor or administrator will be reduced by the conveyance in an amount that prevents a creditor from receiving the whole debt and the value of the real estate to be sold is materially greater than the contract price.

    Amended 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011; 2017, No. 195 (Adj. Sess.), § 9.

History

Source. V.S. 1947, § 2969. P.L. § 2902. G.L. § 3357. P.S. § 2882. V.S. § 2493. R.L. § 2180. G.S. 48, §§ 42, 43. R.S. 44, §§ 40, 41. 1821, p. 36. 1818, p. 83.

Amendments--2017 (Adj. Sess.). Section amended generally.

Amendments--2009 (Adj. Sess.) Substituted "probate division of the superior court" for "probate court."

ANNOTATIONS

1. Contract to convey as license to occupy.

Where testator, after making of will, made a contract in writing, but unsealed, unwitnessed and unrecorded, whereby he agreed to convey a piece of land included in one of the devises, and was to be paid therefor two hundred dollars in installments, and to give a deed and take a mortgage back after fifty dollars had been paid, and where possession had been taken and twenty-eight dollars of price paid before testator's decease, contract did not operate as a pro tanto revocation of the will, but was only a license to occupy, under which the licensor's interest was lost by nonpayment; and if his payment created an equity in his favor, it could be asserted only by him, or his privies, not by executor for the purpose of depriving devisee of land. In re Fuller's Estate, 71 Vt. 73, 42 A. 981 (1898).

§ 1660. Repealed. 2017 No. 195 (Adj. Sess.), § 9.

History

Former § 1660. Former § 1660, relating to license granted by court, when; notice; hearing, was derived from V.S. 1947, § 2970; P.L. § 2903; G.L. § 3357; P.S. § 2882; V.S. § 2493; R.L. § 2180; G.S. 48, §§ 42, 43; R.S. 44, §§ 40, 41; 1821, p. 36; 1818, p. 83 and amended by 1985, No. 144 (Adj. Sess.), § 79 and 2009, No. 154 (Adj. Sess.), § 238a.

§ 1661. Real estate held in trust; license to convey to beneficiary.

When a person dies seized of real estate held in trust for another person or seized of real estate by virtue of a decree of foreclosure or sale on execution to the deceased or to an executor or administrator on a debt nominally owed to the deceased but actually owed to another person, after notice, the Probate Division of the Superior Court may grant license to the executor or administrator to convey the real estate to the person, or to an executor or administrator, for whose use and benefit they are held, and the court may decree the execution of the trust, whether created by deed or by law.

Amended 1985, No. 144 (Adj. Sess.), § 80; 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011; 2017, No. 195 (Adj. Sess.), § 9.

History

Source. V.S. 1947, § 2971. 1947, No. 202 , § 2994. P.L. § 2904. G.L. § 3358. P.S. § 2883. V.S. § 2494. R.L. § 2181. 1876, No. 81 . G.S. 48, § 44. R.S. 44, § 42. 1821, p. 37.

Amendments--2017 (Adj. Sess.). Section amended generally.

Amendments--2009 (Adj. Sess.) Substituted "probate division of the superior court" for "probate court."

Amendments--1985 (Adj. Sess.). Substituted "the deceased or to an" for "him or to his" following "sale on execution to", deleted "given as required in section 1660 of this title" following "notice" and "probate" preceding "court may decree" and made other minor stylistic changes throughout the section.

ANNOTATIONS

Analysis

1. Trust by implication of law.

Probate court could grant an administrator license to convey real estate held by deceased in trust arising by implication of law, and could hear and determine facts necessary to show whether such a trust existed. Bickford v. Estate of Bickford, 68 Vt. 525, 35 A. 471 (1896).

2. Life tenant who pays off encumbrance.

A life tenant who paid an encumbrance was entitled to subrogation against the remainderman to extent latter was bound to pay to protect his estate, without proof of an intention to keep the mortgage on foot; and this right could be enforced by his executor, but, in such case, probate court could not grant relief, either by way of subrogation or under this section and resort must be had to court of chancery. Wilder's Executrix v. Wilder, 75 Vt. 178, 53 A. 1072 (1903).

§ 1662. Sale of encumbered property of deceased; disposition of surplus.

When the executor or administrator is licensed to sell real or personal estate of the decedent that is subject to any mortgage or other lien, the net sale proceeds shall be first applied to the payment of the secured debt. If the property sold is subject to a devise under the will of the decedent, any surplus sale proceeds shall be distributed to the devisee of the property. If the property sold is not subject to a devise under the will of the decedent, any surplus sale proceeds shall be administered by the executor or administrator as property of the estate.

Amended 1985, No. 144 (Adj. Sess.), § 81; 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011; 2017, No. 195 (Adj. Sess.), § 9.

History

Source. V.S. 1947, § 2972. P.L. § 2905. G.L. § 3359. P.S. § 2884. 1900, No. 38 , § 1.

Amendments--2017 (Adj. Sess.). Section amended generally.

Amendments--2009 (Adj. Sess.) Substituted "probate division of the superior court" for "probate court."

Amendments--1985 (Adj. Sess.). Substituted "motion" for "the application" following "debt, on" in the first sentence and rewrote the second sentence.

ANNOTATIONS

Analysis

1. Payment of taxes and mortgage from funds of estate.

In suit in equity against administratrix of estate and heir of decedent, seeking specific performance of contract for sale of farm and personal property thereon belonging to decedent's estate, where agreement made by administratrix and heir was to sell farm to plaintiffs for sum less than amount due on note secured by mortgage of farm and endorsed by plaintiffs, in absence of finding that estate was solvent, decree of specific performance should not include order for payment of mortgage and arrears of taxes from purchase money and such additional sum from estate as might be necessary, and for transferring of personal property, since making such payment and transfer from the estate when the mortgage debt was partially unsecured might make it impossible to pay other creditors their pro rata shares and enable plaintiffs to gain an unfair advantage. Smith v. White's Estate, 108 Vt. 473, 188 A. 901 (1937).

2. Payment of mortgage on devised land sold to pay debt.

Where mortgaged property of an estate was sold under this section, a devisee's common-law right of exoneration was defeated, and mortgaged property was, to extent of its value, made primary source of payment. In re Reynolds' Estate, 94 Vt. 149, 109 A. 60 (1920).

Where an executrix applied for a license to sell all real estate of testatrix, representing that personal property was insufficient to pay debts and that real estate was encumbered by mortgages (which had been given after execution of will), and, while application was pending, buildings on lot burned and insurance was applied to pay the mortgage on that lot, and later the probate court granted the license prayed for, directing that the other mortgage should be paid from avails of land covered by it, the procedure in effect was pursuant to this section, and devisees of lot who were also the mortgagees were not entitled to exoneration. In re Reynolds' Estate, 94 Vt. 149, 109 A. 60 (1920).

3. Jurisdiction of probate court.

Court of chancery had no jurisdiction to order administratrix to pay money from funds in estate in satisfaction of mortgage and arrears of taxes and to transfer personal property, since probate court had exclusive jurisdiction over her administration account and that court alone could allow such payment and transfer in settlement of the account. Smith v. White's Estate, 108 Vt. 473, 188 A. 901 (1937).

§§ 1663, 1664. Repealed. 2017, No. 195 (Adj. Sess.), § 9.

History

Former §§ 1663, 1664. Former § 1663, relating to manner of sale of encumbered property; deed, was derived from V.S. 1947, § 2973; P.L. § 2906; G.L. § 3360; P.S. § 2885; 1900, No. 38 , § 1.

Former § 1664, relating to encumbered property; disposition of surplus, was derived from V.S. 1947, § 2974; P.L. § 2907; G.L. § 3361; P.S. § 2886; 1900, No. 38 , § 1.

§ 1665. Exception; application of law.

Section 1662 of this title shall not affect the rights of a surviving spouse, but shall apply to the application of the net proceeds of a sale of mortgaged real estate sold pursuant to a license granted by the Probate Division of the Superior Court after February 1, 1901.

Amended 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011; 2017, No. 195 (Adj. Sess.), § 9.

History

Source. V.S. 1947, § 2975. P.L. § 2908. G.L. § 3362. P.S. § 2887. 1900, No. 38 , §§ 1, 2.

Amendments--2017 (Adj. Sess.). Section amended generally.

Amendments--2009 (Adj. Sess.) Substituted "probate division of the superior court" for "probate court."

CHAPTER 77. DECREES OF DISTRIBUTION OR PARTITION OF ESTATES

Sec.

History

Applicability of 2017 (Adj. Sess.) amendment. 2017, No. 195 (Adj. Sess.), § 19 provides: "This act [which amended this chapter] shall take effect on July 1, 2018 and shall apply to wills executed or offered for admission on or after that date."

§ 1721. Distribution; court to order; persons entitled to shares may recover.

  1. After payment of or provision for the debts, funeral charges, and expenses of administration, allowances made for the maintenance of the family and support of the minor children, and the assignment to the surviving spouse of the elective or intestate share of the decedent's estate:
    1. the executor or administrator may distribute without court order personal estate in partial or full satisfaction of legacies, bequests, and residuary interests in an aggregate amount not to exceed one-half of the remaining estate;
    2. the court, upon motion of the executor or administrator, may order partial distribution of devises, legacies, bequests, and residual shares, or order other payments, before a final accounting and distribution; and
    3. after the Probate Division of the Superior Court approves a final accounting and the Department of Taxes provides a notice of clearance, the court shall order the distribution of the remaining estate.
  2. In its orders of distribution, the court shall name the persons and proportions or parts to which each is entitled, and such persons may demand and recover their respective shares from the executor or administrator or any other person having possession of them. In the event that the assets remaining in the hands of the executor or administrator after one or more partial distributions are insufficient to satisfy the ultimate expenses and charges against the estate, those persons having received the distributions shall be liable to repay the executor or administrator on a pro rata basis. If the executor or administrator cannot collect against one or more of the persons to whom the distributions were made, the amount not recoverable shall be equitably apportioned by the court among the other persons subject to apportionment. The court may assign the claim for recovery of previously distributed assets to persons directed by the court to repay a disproportionate amount of the total.
  3. The executor or administrator shall include in its application for distribution of the residue that the decedent has been cremated and decedent's remains properly disposed of, or that a suitable gravestone has been erected or provided for at the grave of the deceased if buried in this State, and that perpetual care has been provided for the burial lot, if any.

    Amended 1989, No. 142 (Adj. Sess.), § 8; 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011; 2017, No. 195 (Adj. Sess.), § 10.

History

Source. V.S. 1947, § 3059. P.L. § 2974. G.L. § 3424. 1917, No. 254 , § 3376. P.S. § 2944. V.S. § 2553. 1884, No. 92 . R.L. § 2239. G.S. 57, § 4. R.S. 53, § 2. 1834, No. 4 , § 1. 1821, p. 58. R. 1797, p. 225, § 33. R. 1787, p. 53.

Amendments--2017 (Adj. Sess.). Section amended generally.

Amendments--2009 (Adj. Sess.) Substituted "probate division of the superior court" for "probate court" in subsecs. (a) and (c)

Amendments--1989 (Adj. Sess.). Designated the existing first sentence of the section as subsec. (a) and designated the existing second through fourth sentences as subsec. (b), substituted "hereinafter" for "hereinbefore" preceding "provided" in the third sentence of subsec. (b) and added subsec. (c).

Cross References

Cross references. Automatic transfer of title to motor vehicle to surviving spouse, see § 2023 of Title 23.

Escheats, see § 681 et seq. of this title.

Inclusion of amount of estate tax in final decree of distribution, see § 7454 of Title 32.

ANNOTATIONS

Analysis

1. Residue.

"Residue" of estate means that part of estate which remains after payment of debts, funeral charges and expenses of administration and after allowance made for the expense of maintenance of family of deceased and for support of his children under seven years of age and after assignment to widow of her interest in real estate and of her share in personal estate, to be assigned to the persons entitled to same under will or statute of distribution. 1934-36 Op. Atty. Gen. 568.

2. Errors in decree.

Fact that a decree of distribution of an estate did not refer to funeral charges and other expenses did not make decree a nullity; if there was error in such decree, remedy was by way of appeal and the decree, if unappealed from, could not be collaterally attacked. Probate Court v. American Fidelity Co., 113 Vt. 418, 35 A.2d 495 (1944).

3. Matters on which decree conclusive.

A decree of the probate court, partitioning real estate among heirs, or devisees, is only conclusive as to the matter of division among them of whatever estate exists, which they have a right to have thus divided, but has no effect upon the question as to the title of the land. Grice v. Randall, 23 Vt. 239 (1851).

4. Right to possession.

When probate court has assigned real estate to heirs, heirs have a right to possession as against administrators; and such decree, unappealed from, divests the administrator of any right to control, or demand possession of, such estate. Administrators of Tryon v. Tryon, 16 Vt. 313 (1844).

5. Actions to recover shares .

* Construction with other laws.

Residuary legatee, to whom executor has failed to pay amount decreed by final decree, may maintain action of tort against executor for misappropriation of money of estate that took place prior to decree, by force of section 2534 of Title 13, which makes such misappropriation a felony, such statute having been passed primarily for the protection of persons so defrauded, and to supply defect of remedy provided by this section, which, although permitting legatee to sue for his legacy, does not give body action against executor. Reed v. Hendee, 100 Vt. 351, 137 A. 329 (1927); Walker's Guardian v. Hendee, 100 Vt. 362, 137 A. 334 (1927).

*6. Conditions precedent.

Administrator upon an estate is not liable to be sued for distributive share of an heir to such estate, previous to any proceedings being had in probate court in reference to fixing amount of each heir's distributive portion of estate, and persons to whom it is to be paid. Adams v. Adams, 16 Vt. 228 (1844).

*7. Parties.

When probate court has decreed the payment of a legacy, a court of equity has jurisdiction to compel the executor to pay it; and when a legatee brings a bill to enforce the payment of a legacy, it appearing that no other legatee or creditor is interested, they need not be joined as parties. Bellows v. Sowles, 57 Vt. 411 (1885).

*8. Pleadings.

An action of debt would lie against an executor upon a decree of probate court to recover a legacy, and it was not necessary to allege that executor had legacy in his possession, nor that debts, funeral charges, etc., had been paid. Weeks v. Sowles, 58 Vt. 696, 6 A. 603 (1886).

Cited. In re Will of Prudenzano, 116 Vt. 55, 68 A.2d 704 (1949).

§ 1722. Parties interested may have order on giving bond.

An order for distribution may be made on motion of the executor or administrator or of one or more persons interested in the estate. The heirs, devisees, or legatees shall not be entitled to an order for distribution of their shares until the conditions for distribution described in section 1721 of this title have been satisfied, unless they give a bond, with such surety as the court directs, to secure the payment of the amounts necessary to satisfy the conditions and to indemnify the executor or administrator against the same.

Amended 1985, No. 144 (Adj. Sess.), § 82; 2017, No. 195 (Adj. Sess.), § 10.

History

Source. V.S. 1947, § 3060. P.L. § 2975. G.L. § 3425. P.S. § 2945. V.S. § 2554. R.L. § 2240. G.S. 57, § 5. R.S. 53, § 3. 1821, p. 58. R. 1797, p. 225, § 34. R. 1797, p. 229, § 43. R. 1787, p. 55.

Amendments--2017 (Adj. Sess.). Section amended generally.

Amendments--1985 (Adj. Sess.). Inserted "for distribution" preceding "may be made on" and substituted "motion" for "the application" thereafter in the first sentence and made other minor stylistic changes throughout the section.

Cross References

Cross references. Probate bonds generally, see § 2101 et seq. of this title.

Service of motion to partition real or personal estate, see Rule 5.1, Vermont Rules of Probate Procedure.

§ 1723. Advancement; how asserted; what constitutes.

An interested party may assert a claim that the decedent made a transfer during life that was an advancement. The party making the claim shall have the burden of proving it. Real or personal estate given by a decedent during the decedent's lifetime shall be reckoned toward the share of the decedent's estate otherwise allocable to the person to whom the lifetime gift was made as an advancement, and for that purpose shall be considered a part of the estate, if any of the following apply:

  1. The decedent declares in a writing, signed in the presence of and subscribed by two disinterested persons, that a gift or grant was made as an advancement.
  2. The gift or grant is acknowledged in a signed writing as an advancement by the recipient of the gift or grant.

    Amended 2017, No. 195 (Adj. Sess.), § 10.

History

Source. V.S. 1947, § 3066. P.L. § 2981. G.L. § 3431. P.S. § 2951. V.S. § 2560. R.L. § 2246. G.S. 56, §§ 12, 13. R.S. 52, §§ 8, 9. 1821, p. 58. R. 1797, p. 223, § 27. R. 1797, p. 226, § 35. R. 1787, p. 54.

Amendments--2017 (Adj. Sess.). Section amended generally.

ANNOTATIONS

Analysis

1. Generally.

Doctrine of advancements is governed by statute, and, by this section, comes into operation only after a donor has died intestate. Cushman v. Outwater, 121 Vt. 426, 159 A.2d 89 (1960).

2. Conversion into absolute gift.

An advancement may be converted into an absolute gift by the intestate, by surrendering evidence thereof to be cancelled. Wheeler v. Wheeler's Estate, 47 Vt. 637 (1874).

3. Expenses of education as advancement.

Expenses of college education was a proper item to be charged as advancement if father chose so to charge it. Robinson v. Robinson, Brayt. 59 (1818).

4. Real estate as advancement.

Real estate, to be regarded as advancement, must be expressed in deed to be such, or expressed to be conveyed for love and affection; and if a pecuniary consideration be expressed in deed, estate conveyed cannot be made an advancement, by merely showing that deed was in fact executed upon consideration of love and affection. Heirs of Adams v. Adams, 22 Vt. 50 (1849).

Where father conveyed by deed certain lands to son, and consideration expressed in it was a pecuniary one, such conveyance could not be, prima facie, taken as an advancement to son; and if parol evidence was admitted tending to prove that conveyance was in fact made for love and affection, so that it might be presumed to be an advancement, it was competent for son to rebut such evidence by showing true intent of father in making deed. Newell v. Newell, 13 Vt. 24 (1841).

5. Entries in book as evidence.

Declarations of an intestate, whether made at time of making entries in his book against his children, or afterwards, are inadmissible as evidence of intention of intestate in making such entries; whether such charges were intended by intestate as an advancement must be evidenced by book, and intention of intestate gathered from book, and parol testimony was inadmissible to control intention of intestate. Weatherhead v. Field, 26 Vt. 665 (1854).

An entry made by a father upon a book, other than one on which he charged his accounts of debt and credit, and made in these words, "Property delivered William and Abel Brown, viz. Notes $200," etc., was held admissible as tending to prove that property specified in entry was delivered as an advancement. Brown v. Brown, 16 Vt. 197 (1844).

No particular form of words was required, in an entry made by father, to show as advancement; an entry on books of deceased, of property delivered to a child, made in such a manner as to exclude idea of a debt, is evidence that it was intended as an advancement; and intention need not be expressed in entry. Brown v. Brown, 16 Vt. 197 (1844).

6. Receipt as evidence.

A receipt executed by a son to his father, for a certain sum, in full of his share, as heir to his father's estate, was only evidence of an advancement to amount therein mentioned, and not to bar son of his share as heir. Robinson v. Robinson, Brayt. 59 (1818).

7. Jurisdiction of probate court.

Entire subject of advancement was within the jurisdiction of probate court. Heirs of Adams v. Adams, 22 Vt. 50 (1849).

§ 1724. Advancement reckoned toward heir's share.

If the amount advanced exceeds the share of the heir or other estate beneficiary, he or she shall be excluded from any further share in the estate but shall not be liable to refund any part of the amount advanced. If the advancement is less than the share of the heir or other estate beneficiary, he or she shall receive a further sum that, with the advancement, equals his or her legal share in the estate.

Amended 2017, No. 195 (Adj. Sess.), § 10.

History

Source. V.S. 1947, § 3067. 1947, No. 202 , § 3090. P.L. § 2982. G.L. § 3432. P.S. § 2952. V.S. § 2561. R.L. § 2247. G.S. 56, § 14. R.S. 52, § 10.

Amendments--2017 (Adj. Sess.). Section amended generally.

§ 1725. Application of advancement.

  1. If an advancement is in real property, the same shall be set off, first, against the heir's or other beneficiary's share of real property in the estate, including the real property so advanced, and the excess value, if any, shall be set off against the heir's or other beneficiary's share of the decedent's personal estate.
  2. If an advancement is in personal estate, the same shall be set off, first, against the heir's or other beneficiary's share in the personal estate, and the excess value, if any, shall be offset against the heir's or other beneficiary's share in the real property of the estate.
  3. If the heirs or beneficiaries consent, a different application of the advancement may be made.

    Amended 2017, No. 195 (Adj. Sess.), § 10.

History

Source. V.S. 1947, § 3068. P.L. § 2983. G.L. § 3433. P.S. § 2953. V.S. § 2562. R.L. § 2248. G.S. 56, § 15. R.S. 52, § 11.

Amendments--2017 (Adj. Sess.). Section amended generally.

§ 1726. Advancement reckoned toward share of representative of deceased heir.

If the recipient of an advancement dies before the decedent, the advancement shall be reckoned against the share of those interested in the estate by right of representation of the recipient, as it would be reckoned toward the share of the recipient, if living.

Amended 2017, No. 195 (Adj. Sess.), § 10.

History

Source. V.S. 1947, § 3069. P.L. § 2984. G.L. § 3434. P.S. § 2954. V.S. § 2563. R.L. § 2249. G.S. 56, § 16. R.S. 52, § 12.

Amendments--2017 (Adj. Sess.). Section amended generally.

ANNOTATIONS

1. Effect of release by heir on share or representatives.

Section made no provision for advancement to heir being taken in full for representative's share, unless advancement was of a sum equal to the representative's share, so writing by daughter of intestate purporting to release all her rights in estate in consideration for a specific advancement did not bar her children taking by right of representation. Buck v. Kittle's Estate, 49 Vt. 288 (1877).

§ 1727. Valuation of advancement.

Where the value of an advancement is expressed in the conveyance or in the charge made by the decedent, or by the intestate decedent at the time of declaration before two witnesses, the advancement shall be taken to be of the value so expressed or declared; otherwise it shall be estimated according to the value at the time it was made.

Amended 2017, No. 195 (Adj. Sess.), § 10.

History

Source. V.S. 1947, § 3070. 1947, No. 202 , § 3093. P.L. § 2985. G.L. § 3435. P.S. § 2955. V.S. § 2564. R.L. § 2250. G.S. 56, § 17. R.S. 52, § 13.

Amendments--2017 (Adj. Sess.). Section amended generally.

ANNOTATIONS

1. Advancement as bar on representatives.

Section did not authorize ancestor and heir expectant to agree on value of thing advanced as consideration for agreement to bar representatives of heir expectant from taking anything from estate. Buck v. Kittle's Estate, 49 Vt. 288 (1877).

§ 1728. Court to determine questions of advancement.

Questions as to an advancement made or alleged to have been made by the deceased may be heard and determined by the Probate Division of the Superior Court and shall be specified in the decree assigning the estate, regardless of whether the subject of a prior court order. The final decree of the Probate Division of the Superior Court or of the Supreme Court on appeal, shall be binding on all persons interested in the estate.

Amended 1985, No. 144 (Adj. Sess.), § 83; 2009, No. 154 (Adj. Sess.), § 122, eff. Feb. 1, 2011; 2017, No. 195 (Adj. Sess.), § 10.

History

Source. V.S. 1947, § 3071. P.L. § 2986. G.L. § 3436. P.S. § 2956. V.S. § 2565. R.L. § 2251. G.S. 57, § 17. R.S. 53, § 15. 1821, p. 58.

Amendments--2017 (Adj. Sess.). Deleted "to an heir" following "deceased" in the first sentence; inserted ", regardless of whether the subject of a prior court order" following "estate"; and substituted "all" for "the" preceding "persons" in the second sentence.

Amendments--2009 (Adj. Sess.) Inserted "division of the superior" preceding "court" in the first sentence, and substituted "probate division, or of the supreme court" for "probate court, or of the superior or supreme court" in the second sentence.

Amendments--1985 (Adj. Sess.). Deleted "and in the warrant to the commissioners, provided for in section 1729 of this title" following "estate" at the end of the first sentence and substituted "superior" for "county" preceding "or supreme" in the second sentence.

ANNOTATIONS

1. Jurisdiction of probate court.

Court of probate had jurisdiction over questions of advancement by an ancestor to his heir, and to decide whether heir had discharged or renounced his right in distribution of his ancestor's estate; and decree of a probate court upon such a question, affirmed by supreme court on appeal, was conclusive both at law and in equity. Robinson v. Swift, 3 Vt. 283 (1830).

§ 1729. Partition.

When the real or personal estate assigned to two or more heirs, devisees, or legatees is in common and undivided, and their respective shares are not separated and distinguished, partition and distribution of the estate shall be made pursuant to 12 V.S.A. chapter 179 or, if the court consents, by the Probate Division of the Superior Court upon application by any interested heir, devisee, or legatee, and shall be conclusive on all persons interested.

Amended 1985, No. 144 (Adj. Sess.), § 84; 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011; 2017, No. 195 (Adj. Sess.), § 10.

History

Source. V.S. 1947, § 3072. P.L. § 2987. G.L. § 3437. P.S. § 2957. V.S. § 2566. R.L. §§ 2252, 2265. G.S. 57, §§ 6, 19. R.S. 53, §§ 4, 17. 1821, p. 60. R. 1797, p. 219, § 22.

Amendments--2017 (Adj. Sess.). Section amended generally.

Amendments--2009 (Adj. Sess.) Substituted "probate division of the superior court" for "probate court."

Amendments--1985 (Adj. Sess.). Section amended generally.

Cross References

Cross references. Partition of real estate generally, see § 5161 et seq. of Title 12.

ANNOTATIONS

1. Jurisdiction.

Probate court had no authority to make a partition of real estate left by deceased person among parties interested when estate was no longer in course of administration and none of original heirs retained any interest in the land. Cox v. Ingleston, 30 Vt. 258 (1858).

Where a certain number of acres were devised to one person, and residue of lot to another person, and one of devisees died before any division was in fact made between them, probate court had power on application of one of devisees to appoint a committee to set off and divide land, according to terms of devise. Chamberlin v. Estate of Chamberlin, 16 Vt. 532 (1844).

Cited. Chamberlin v. Estate of Chamberlin, 16 Vt. 532 (1844); Sparrow v. Watson, 87 Vt. 366, 89 A. 468 (1914).

§ 1730. Partition of real estate in different counties.

If the real estate lies in different counties, the Probate Division of the Superior Court may appoint different commissioners for each county. The estate in each county shall be divided separately as though there were no other estate to be divided.

Amended 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011; 2017, No. 195 (Adj. Sess.), § 10.

History

Source. V.S. 1947, § 3073. P.L. § 2988. G.L. § 3438. P.S. § 2958. V.S. § 2567. R.L. § 2253. G.S. 57, § 7. R.S. 53, § 5.

Editor's note. The language in the first sentence relating to appointment of commissioners is obsolete. Prior to its amendment by 1985, No. 144 (Adj. Sess.), § 84, section 1729 provided that partition was to be made by three commissioners appointed by the probate court.

Amendments--2017 (Adj. Sess.). Inserted "real" preceding "estate" in the section heading and deleted "In such case" preceding "the estate in each" in the second sentence.

Amendments--2009 (Adj. Sess.) Substituted "probate division of the superior court" for "probate court."

§ 1731. Partition unnecessary when parties agree.

When the Probate Division of the Superior Court distributes assets of an estate to one or more persons entitled to the same, it shall not be necessary to make partition of the assets distributed if the parties to whom the assignment is made agree to an allocation of assets without partition.

Amended 1985, No. 144 (Adj. Sess.), § 85; 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011; 2017, No. 195 (Adj. Sess.), § 10.

History

Source. V.S. 1947, § 3074. 1947, No. 202 , § 3097. P.L. § 2989. G.L. § 3439. P.S. § 2959. V.S. § 2568. R.L. § 2254. G.S. 57, § 16. R.S. 53, § 14.

Amendments--2017 (Adj. Sess.). Substituted "assets" for "the residue" following "distributes", "assets distributed" for "estate" following "of the" and "an allocation of assets without" for "dispense with" following "agree to".

Amendments--2009 (Adj. Sess.) Substituted "probate division of the superior court" for "probate court."

Amendments--1985 (Adj. Sess.). Deleted "appoint commissioners to" preceding "make partition" and "or distribution" thereafter and made other minor stylistic changes.

§§ 1732, 1733. Repealed. 1985, No. 144 (Adj. Sess.), § 163.

History

Former § 1732, relating to petition and notice for partition and distribution, was derived from V.S. 1947, § 3075; P.L. § 2990; G.L. § 3440; P.S. § 2960; V.S. § 2569; R.L. § 2255; G.S. 57, § 8; R.S. 53, § 6; R. 1797, p. 219, § 22.

Former § 1733, relating to appointment of guardians and agents before partition, was derived from V.S. 1947, § 3076; P.L. § 2991; G.L. § 3441; P.S. § 2961; V.S. § 2570; R.L. § 2256; G.S. 57, §§ 14, 23; R.S. 53, §§ 12, 21; 1821, p. 60; R. 1797, p. 220, § 23; R. 1797, p. 230, § 45, and amended by 1985, No. 144 (Adj. Sess.), § 86.

§ 1734. Partition when ownership has changed.

Partition of real estate may be made although some of the original heirs or devisees have conveyed their shares to other persons. The shares shall be set out to the persons holding the same, as they would have been to the heirs or devisees.

Amended 2017, No. 195 (Adj. Sess.), § 10.

History

Source. V.S. 1947, § 3077. P.L. § 2992. G.L. § 3442. P.S. § 2962. V.S. § 2571. R.L. § 2257. G.S. 57, § 9. R.S. 53, § 7.

Amendments--2017 (Adj. Sess.). Deleted "the" preceding "real estate" in the first sentence and substituted "The" for "Such" preceding "shares" in the second sentence.

ANNOTATIONS

1. Jurisdiction.

Probate court had no authority to make a partition of real estate, left by a deceased person, among parties interested therein, when estate was no longer in course of administration, and none of original heirs retained any interest in land. Cox v. Ingleston, 30 Vt. 258 (1858).

County court had jurisdiction of petition for partition of real estate, which descended to heirs of a deceased person, among whom it never was divided, where petitioner had bought out a part of said heirs and held estate in common with others. Collamer v. Hutchins, 27 Vt. 733 (1855).

§ 1735. Shares, how set out in partition.

The shares in the real and personal estate shall be set out to each individual, in proportion to his or her right, by metes and bounds or other description that permits the shares to be easily distinguished, except to the extent that two or more of the parties interested consent to have their shares set out so as to be held by them in common and undivided.

Amended 2017, No. 195 (Adj. Sess.), § 10.

History

Source. V.S. 1947, § 3078. P.L. § 2993. G.L. § 3443. P.S. § 2963. V.S. § 2572. R.L. § 2258. G.S. 57, § 10. R.S. 53, § 8.

Amendments--2017 (Adj. Sess.). Section amended generally.

ANNOTATIONS

Analysis

1. Land excepted.

Where devise was of twenty acres of land on north side of a certain lot, except house standing thereon and land necessary for years, etc., around it, land excepted must be taken out of twenty acres, and devisee had no claim to twenty acres, after setting off the excepted parts. Chamberlin v. Estate of Chamberlin, 16 Vt. 532 (1844).

2. Buildings.

Where, by will, one-half of a certain barn was devised to one person, and the other half to other, and one of devisees purchased by parol, and without any writing executed, the interest of other devisee in barn, committee need not make any mention of barn in their report. Chamberlin v. Estate of Chamberlin, 16 Vt. 532 (1844).

§ 1736. Severance from estate of third persons.

When partition of real estate among heirs or devisees is required and the real estate lies in common and undivided with the real estate of another person, the court shall have jurisdiction over the real estate and the other person, and shall divide and sever the estate of the deceased from the estate of the other person. A division made pursuant to this section by the Probate Division of the Superior Court shall be binding on persons interested.

Amended 1985, No. 144 (Adj. Sess.), § 87; 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011; 2017, No. 195 (Adj. Sess.), § 10.

History

Source. VS. 1947, § 3079. P.L. § 2994. G.L. § 3444. P.S. § 2964. V.S. § 2573. R.L. § 2259. G.S. 57, § 13. R.S. 53, § 11. 1921, p. 60. R. 1797, p. 220, § 23. R. 1797, p. 230, § 45.

Amendments--2017 (Adj. Sess.). Section amended generally.

Amendments--2009 (Adj. Sess.) Substituted "probate division of the superior court" for "probate court."

Amendments--1985 (Adj. Sess.). Substituted "the" for "such" following "required and" and "court" for "commissioners" following "person, the" in the first sentence and rewrote the second sentence.

ANNOTATIONS

1. Estate in common.

Where estate of decedent lay in common with other real estate, it was duty of committee first to sever estate which they were to divide from that with which it lay in common and fact that all parties in interest requested them to proceed otherwise, did not justify committee in departing from the direction of the statute; if they did, their report could have no effect as a decree of probate court, however it might stand as an award of arbitrators. In re Parsons' Estate, 64 Vt. 193, 23 A. 519 (1891).

§ 1737. When estate cannot be divided without injury; to be sold; procedure.

When the real estate of a decedent, or any part of it greater than the share in it of any one of the heirs, cannot be divided without prejudice or inconvenience to the owners, proceedings may be had for the assignment or sale of the real estate in the Probate Division of the Superior Court.

Amended 1985, No. 144 (Adj. Sess.), § 88; 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011; 2017, No. 195 (Adj. Sess.), § 10.

History

Source. V.S. 1947, § 3080. P.L. § 2995. G.L. § 3445. P.S. § 2965. 1902, No. 54 , §§ 1, 2. V.S. §§ 2575, 2576. R.L. §§ 2261, 2262. G.S. 57, §§ 11, 12. R.S. 53, §§ 9, 10. 1821, pp. 59, 60. R. 1797, p. 229, § 42. R. 1797, p. 230, § 44.

Amendments--2017 (Adj. Sess.). Section amended generally.

Amendments--2009 (Adj. Sess.) Substituted "probate division of the superior court" for "probate court."

Amendments--1985 (Adj. Sess.). Deleted "the same" following "owners" and "as are provided for partition of real estate by proceedings in the county court" following "thereof".

ANNOTATIONS

1. Partition.

Vermont Code provides that when the real estate of a decedent, or any part thereof greater than the share therein of any one of the heirs, cannot be divided without prejudice or inconvenience to the owners, proceedings may be had in the Probate Division of the Superior Court for the assignment or sale thereof. The Court views this power as an adjunct to the responsibility of the probate court to partition real property assigned to devisees in common and undivided. In re Estate of Fitzsimmons, 195 Vt. 94, 86 A.3d 1026 (2013).

§ 1738. Repealed. 1985, No. 144 (Adj. Sess.), § 163.

History

Former § 1738, relating to report of commissioners appointed to partition estate, was derived from V.S. 1947, § 3081; P.L. § 2996; G.L. § 3446; P.S. § 2966; V.S. § 2577; R.L. § 2263; G.S. 57, § 15; R.S. 53, § 13; 1821, p. 61; 1804, p. 126; R. 1797, p. 219, § 22, and amended by 1971, No. 179 (Adj. Sess.), § 6.

§ 1739. Final decree of distribution or partition; bond.

The Probate Division of the Superior Court shall not make a final decree of distribution or partition in an estate against which a person engaged in the military service of the United States and outside this State has a claim, until a bond is filed in the court by the creditors, heirs, legatees, or devisees or some one or more of them, in a sum and with sureties as the court directs, conditioned to pay the claimant the sum of money that is finally allowed him or her against the estate.

Amended 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011; 2017, No. 195 (Adj. Sess.), § 10.

History

Source. V.S. 1947, § 3082. P.L. § 2997. G.L. § 3447. P.S. § 2967. V.S. § 2578. R.L. § 2264. G.S. 57, § 24.

Amendments--2017 (Adj. Sess.). Section amended generally.

Cross References

Cross references. Probate bonds, see § 2101 et seq. of this title.

Amendments--2009 (Adj. Sess.) Substituted "probate division of the superior court" for "probate court."

ANNOTATIONS

1. Partition.

Vermont Code provides that when the real estate of a decedent, or any part thereof greater than the share therein of any one of the heirs, cannot be divided without prejudice or inconvenience to the owners, proceedings may be had in the Probate Division of the Superior Court for the assignment or sale thereof. The Court views this power as an adjunct to the responsibility of the probate court to partition real property assigned to devisees in common and undivided. In re Estate of Fitzsimmons, 195 Vt. 94, 86 A.3d 1026 (2013).

§ 1740. Payment of expenses; from estate, if sufficient.

At the time of partition or distribution of an estate, if the executor or administrator has retained sufficient assets that may lawfully be applied for that purpose, the expenses of partition or distribution may be paid by the executor or administrator when it appears to the court equitable and not inconsistent with the intention of a testator.

Amended 2017, No. 195 (Adj. Sess.), § 10.

History

Source. V.S. 1947, § 3083. P.L. § 2998. G.L. § 3448. P.S. § 2968. V.S. § 2579. R.L. § 2266. G.S. 57, § 20. R.S. 53, § 18.

Amendments--2017 (Adj. Sess.). Substituted "assets that" for "effects in his hands which" following "sufficient" and deleted "such" following "expenses of".

§ 1741. Parties to pay cost of partition, when.

If there are insufficient assets in the hands of the executor or administrator that may be lawfully applied to the costs of partition, the expenses and charges of partition determined by the Probate Division of the Superior Court shall be paid by the parties interested in the partition in proportion to their respective shares or interests in the premises and the proportions shall be allowed by the court. If a person interested in the partition does not pay his or her proportion or share, the court may issue a judgment order for the sum assessed, for the benefit of the executor or administrator against the party not paying, returnable in 60 days from the date of the order.

Amended 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011; 2017, No. 195 (Adj. Sess.), § 10.

History

Source. V.S. 1947, § 3084. P.L. § 2999. G.L. § 3449. P.S. § 2969. V.S. § 2580. R.L. § 2267. G.S. 57, § 21. 1851, No. 21 . R.S. 53, § 19. 1821, p. 61. R. 1797, p. 231, § 46.

Amendments--2017 (Adj. Sess.). Section amended generally.

Amendments--2009 (Adj. Sess.) Substituted "probate division of the superior court" for "probate court" twice.

§ 1742. Record of decrees relating to real estate; where recorded.

Certified copies of final orders or decrees of a Probate Division of the Superior Court relating to real estate shall be recorded in the office where by law a deed of the real estate is required to be recorded.

Amended 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011; 2017, No. 195 (Adj. Sess.), § 10.

History

Source. V.S. 1947, § 3085. P.L. § 3000. G.L. § 3450. P.S. § 2970. V.S. § 2581. 1894, No. 162 , § 2520.

Amendments--2017 (Adj. Sess.). Substituted "the" for "such" following "deed of".

Amendments--2009 (Adj. Sess.) Substituted "probate division of the superior court" for "probate court."

Cross References

Cross references. Recording deeds generally, see § 341 of Title 27.

Recording deeds when lands lie in unorganized place, see § 403 of Title 27.

§ 1743. Repealed. 2017, No. 195 (Adj. Sess.), § 10.

History

Former § 1743. Former § 1743, relating to partial distributions, was derived from 1975, No. 240 (Adj. Sess.), § 8 and amended by 1985, No. 144 (Adj. Sess.), § 89; 2009, No. 154 (Adj. Sess.), § 238a.

CHAPTER 79. CONVEYANCE WHEN RECORD HOLDER DECEASED

Sec.

History

Applicability of 2017 (Adj. Sess.) amendment. 2017, No. 195 (Adj. Sess.), § 19 provides: "This act [which amended this chapter] shall take effect on July 1, 2018 and shall apply to wills executed or offered for admission on or after that date."

Cross References

Cross references. Procedure for conveyance of property when record holder deceased generally, see Rule 80, Vermont Rules of Probate Procedure.

§ 1801. Title in deceased persons; petition to Probate Division of the Superior Court.

When the record title to real estate or an interest therein stands in the name of a person who has been deceased for more than seven years and the estate of the person has not been probated and the interest of the heirs in that real estate has not been conveyed or has been defectively conveyed, the Probate Division of the Superior Court where venue lies, upon verified petition and after notice and hearing as provided by the Rules of Probate Procedure, shall determine whether the deceased person or the decedent's heirs are possessed of an existing enforceable title or interest in that real estate.

Amended 1985, No. 144 (Adj. Sess.), § 90; 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011; 2017, No. 195 (Adj. Sess.), § 11.

History

Source. V.S. 1947, § 2980. P.L. § 2913. 1919, No. 87 , § 1.

Amendments--2017 (Adj. Sess.). Substituted "the" for "such" following "estate of".

Amendments--2009 (Adj. Sess.) Substituted "probate division of the superior court" for "probate court."

Amendments--1985 (Adj. Sess.). Section amended generally.

ANNOTATIONS

Analysis

1. Jurisdiction.

Where a person had been deceased for over seven years, she had never conveyed a disputed lot during her lifetime, though no doubt by error, her estate had never been probated, and, at the time the petition under this section was filed, no person claiming to be her heir had attempted to or effectively conveyed their interest in the property; therefore, the probate court had proper jurisdiction over the property. Lysak v. Grull, 174 Vt. 523, 812 A.2d 840 (mem.) (2002).

A special quitclaim deed executed by an heir of the decedent several months after petitioners had filed in probate court claiming adverse possession of a disputed parcel did not defeat the jurisdiction of the court to determine title to the real estate because the deed "was a defective conveyance and of no legal effect." Lysak v. Grull, 174 Vt. 523, 812 A.2d 840 (mem.) (2002).

Under this section the probate court has specifically been given the authority to determine whether there exists an enforceable title in a deceased person, his estate, or in his heirs and, in such situations the question of adverse possession can be determined by such court. In re Estate of Allen, 129 Vt. 107, 272 A.2d 130 (1970).

This section grants power to a probate court to try and determine question of title to real estate where the title to real estate is in the name of a person who has been deceased for seven years, who made no conveyance of such property during his lifetime, whose interest in such real estate has not been administered in the probate court and, in addition, where the heirs of the deceased have made no conveyance of their interest in the real estate, or if such were made, they are defective. In re Estate of Allen, 129 Vt. 107, 272 A.2d 130 (1970).

2. Adverse possession.

Probate court erred in its conclusion that petitioner acquired ownership of parcel of land by adverse possession against his fellow co-tenants; co-tenant must oust his fellow co-tenants by some overt and notorious act of an unequivocal character, indicating an assertion of ownership of the entire premises to the exclusion of the rights of others; the presumption is that one co-tenant in possession is holding the property for all co-tenants. In re Estate of Neil, 152 Vt. 124, 565 A.2d 1309 (1989).

§ 1802. Determination by court of persons entitled to estate.

If the court determines that the heirs or personal representatives of the deceased person are not at the time of the hearing in possession of the real estate and are not entitled to reenter it or to institute and maintain a suit to recover possession of it, the court shall adjudge and decree that the real estate constitutes no beneficial part of the estate of the deceased person and may appoint an administrator to convey the record title of the real estate to the person or persons adjudged by the court to be legally entitled to it.

Amended 2017, No. 195 (Adj. Sess.), § 11.

History

Source. V.S. 1947, § 2981. P.L. § 2914. 1919, No. 87 , § 2.

Amendments--2017 (Adj. Sess.). Section amended generally.

§ 1803. Petition.

A petition under this chapter may be brought by any person in possession or who claims the right to possession of the real estate. It shall recite the facts upon which it is based and shall specify the names and addresses of the heirs and representatives of the deceased person, and of all claimants so far as each class is known to the petitioner.

Amended 1971, No. 185 (Adj. Sess.), § 175, eff. March 29, 1972; 1985, No. 144 (Adj. Sess.), § 91.

History

Source. V.S. 1947, § 2982. P.L. § 2915. 1919, No. 87 , § 3.

Revision note. In the section heading, deleted "service" following "Petition" for purposes of conformity with the text of the section, as amended.

Amendments--1985 (Adj. Sess.). Deleted "be verified under oath and shall" preceding "recite" in the second sentence and deleted the former third and fourth sentences.

Amendments--1971 (Adj. Sess.). Deleted "writ of" preceding "summons" in the third sentence, substituted "as the supreme court may by rule provide for service of process in civil actions" for "provided by section 5165 of Title 12" following "manner" and made other minor changes in phraseology in the fourth sentence.

§ 1804. Appearance; appeal.

A person not so served may become a party defendant by entering his or her appearance with the Probate Division of the Superior Court before the expiration of the time provided by this section for appeal. An appeal may be taken by any person in interest within 30 days from any final decree issued under this chapter by the Probate Division of the Superior Court.

Amended 1971, No. 185 (Adj. Sess.), § 176, eff. March 29, 1972; 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011; 2017, No. 195 (Adj. Sess.), § 11.

History

Source. V.S. 1947, § 2983. P.L. § 2916. 1919, No. 87 , § 3.

Amendments--2017 (Adj. Sess.). Section amended generally.

Amendments--2009 (Adj. Sess.) Substituted "probate division of the superior court" for "probate court" twice.

Amendments--1971 (Adj. Sess.). Substituted "thirty" for "forty-two" preceding "days", "any" for "a" preceding "person in interest" and deleted "in the manner provided by section 2561 of Title 12" thereafter in the second sentence.

CHAPTER 80. WAIVER OF ADMINISTRATION

Sec.

History

Applicability of 2017 (Adj. Sess.) amendment. 2017, No. 195 (Adj. Sess.), § 19 provides: "This act [which enacted this chapter] shall take effect on July 1, 2018 and shall apply to wills executed or offered for admission on or after that date."

§ 1851. Applicability.

This chapter shall apply to all estates, testate and intestate, other than small estates administered under chapter 81 of this title.

Added 2017, No. 195 (Adj. Sess.), § 12.

§ 1852. Motion for waiver of administration; order.

  1. A motion for waiver of administration may be submitted to the Probate Division of the Superior Court with the petition to open the estate or at any time before an accounting is due. The motion shall be made under oath and shall state that:
      1. if the decedent died testate, the moving party is the sole beneficiary of the decedent's estate, and has been nominated and proposes to serve as sole executor; or (1) (A) if the decedent died testate, the moving party is the sole beneficiary of the decedent's estate, and has been nominated and proposes to serve as sole executor; or
      2. if the decedent died intestate, the moving party is the sole heir of the decedent's estate and proposes to serve as sole administrator;
    2. the moving party is the sole fiduciary of the estate;
    3. the decedent owned no real property in the State of Vermont; and
    4. the administration of the estate will be complete without supervision by the Probate Division of the Superior Court in accordance with the decedent's will and applicable law.
  2. The court may grant the motion to waive further administration if it finds that:
    1. the moving party is the only estate beneficiary under the will of a decedent or the only heir of a decedent who died intestate;
    2. the moving party is the sole fiduciary of the estate; and
    3. the decedent owned no real property in the State of Vermont.
  3. If the court grants a motion to waive further administration filed under subsection (a) of this section, it shall issue an order waiving the duty to file an inventory, waiving or discharging the fiduciary bond, and dispensing with further filing with the court other than the final affidavit of administration.

    Added 2017, No. 195 (Adj. Sess.), § 12.

§ 1853. Administration.

  1. Administration of an estate under this chapter may be completed upon the court's approval of the executor's or administrator's affidavit of administration. Unless extended by the court, the affidavit shall be filed not less than six months or more than one year after the date of appointment of the executor or administrator.
    1. The affidavit of administration shall state that to the best of the knowledge and belief of the executor or administrator: (b) (1)  The affidavit of administration shall state that to the best of the knowledge and belief of the executor or administrator:
      1. there are no outstanding expenses of administration, or unpaid or unsatisfied debts, obligations, or claims attributable to the decedent's estate; and
      2. no taxes are due to the State of Vermont, and tax clearance has been received from the Department of Taxes.
    2. If the executor or administrator fails to file the affidavit of administration within the time prescribed by subsection (a) of this section, the executor or administrator shall be in default. If he or she fails to file the affidavit or a request for additional time within 15 days after receiving notice of default, the court may impose sanctions it deems appropriate, including an order that waiver of administration is no longer available. The court shall provide notice of the default to the executor or administrator by first-class mail or other means allowed by the Rules of Probate Procedure.

      Added 2017, No. 195 (Adj. Sess.), § 12.

§ 1854. Discharge of executor or administrator.

Upon the submission of an affidavit of administration, the Probate Division of the Superior Court may close the estate and discharge the executor or administrator if it determines that the provisions of sections 1851 and 1852 of this title have been met.

Added 2017, No. 195 (Adj. Sess.), § 12.

CHAPTER 81. SMALL ESTATES

Sec.

Cross References

Cross references. Small estate proceedings generally, see Rule 80.3, Vermont Rules of Probate Procedure.

§ 1901. Commencement of small estate.

  1. When a decedent's estate has a fair market value of not more than $45,000.00 and consists entirely of personal property, provided that the estate may include a time-share estate as defined by 32 V.S.A. § 3619(a) , an estate may be commenced by filing:
    1. a petition to open a probate estate;
    2. a list of interested persons;
    3. the filing fee;
    4. an original death certificate;
    5. an inventory of the estate, including information or estimates available at the time of filing;
    6. an affidavit of paid and outstanding funeral expenses and any other known or reasonably ascertainable debts of the decedent;
    7. a bond without surety in the amount of the fair market value of the estate; and
    8. the will, if any.
  2. An interested party who does not consent to the small estate proceeding in writing shall be provided with notice of the petition and the pending fiduciary appointment and may file any objections with the court within 14 days after receiving the notice. If no objections are filed, the fiduciary appointment and any will offered for admission shall be approved by the court without further notice or hearing.
  3. If, after an estate is opened pursuant to subsection (a) of this section, it is determined that the value of the decedent's estate at the time of his or her death exceeded $45,000.00, the fiduciary shall petition the court to order that the estate be administered pursuant to the laws and rules applicable to estates with a fair market value in excess of $45,000.00. The court shall grant the petition if it finds that the estate has a fair market value in excess of $45,000.00 and that all applicable fees have been paid.

    Amended 1975, No. 240 (Adj. Sess.), § 10; 2009, No. 75 (Adj. Sess.), § 1; 2019, No. 36 , § 1.

History

Amendments--2019. Section amended generally.

Amendments--2009 (Adj. Sess.). Introductory paragraph: Substituted "is" for "shall be" following "application".

Subdiv. (1): Substituted "the" for "said" preceding "deceased" and deleted "by one or more competent persons or by a disinterested person if deemed necessary by the court" following "cash value".

Subdiv. (2): Rewrote the subdiv.

Cross References

Cross references. Probate bonds generally, see § 2101 et seq. of this title.

§ 1902. Letters of administration, small estates, notice.

  1. When a small estate is commenced pursuant to section 1901 of this title:
    1. If the decedent had a will, the will shall be admitted and letters of administration shall be issued as provided in section 902 of this title.
    2. If the decedent did not have a will, letters of administration shall be issued as provided in section 903 of this title.
  2. Within 60 days after the issuance of letters of administration, and at any time thereafter if deemed necessary by the fiduciary, the fiduciary shall confirm, correct, or supplement the inventory filed with the petition.
  3. Letters of administration issued pursuant to this section shall be effective for one year after the date of issuance. The court may extend the one-year duration upon motion of the fiduciary for good cause shown.

    Added 1975, No. 240 (Adj. Sess.), § 10; amended 1981, No. 150 (Adj. Sess.), § 1; 2009, No. 75 (Adj. Sess.), § 2; 2013, No. 102 (Adj. Sess.), § 5; 2019, No. 36 , § 1.

History

Amendments--2019. Section amended generally.

Amendments--2013 (Adj. Sess.). Subdiv. (b)(2): Inserted "other than a time-share estate as defined by 32 V.S.A. § 3619(a)" following "estate".

Amendments--2009 (Adj. Sess.). Section amended generally.

Amendments--1981 (Adj. Sess.). Section amended generally.

§ 1903. Same; discharge upon payment of funeral expenses; residue.

    1. If it appears from the record that the estate is insolvent, the fiduciary shall apply for an order of dividend from the court. If the estate is not insolvent, the fiduciary shall make payment in settlement with all known or reasonably ascertainable creditors, including payment of income taxes due for the year of the decedent's death, and pay any remaining balance to the beneficiaries of the estate as provided by the will, if any, or as otherwise provided by law. (a) (1)  If it appears from the record that the estate is insolvent, the fiduciary shall apply for an order of dividend from the court. If the estate is not insolvent, the fiduciary shall make payment in settlement with all known or reasonably ascertainable creditors, including payment of income taxes due for the year of the decedent's death, and pay any remaining balance to the beneficiaries of the estate as provided by the will, if any, or as otherwise provided by law.
    2. Upon completion of the payments required by subdivision (1) of this subsection, the fiduciary shall file with the court a sworn statement setting forth the amounts and recipients of each payment.
  2. The court may discharge the fiduciary without further accounting and without notice after the fiduciary has completed the requirements of subsection (a) of this section.
  3. If a discharge is given under this section, any assets distributed by the fiduciary shall be subject to claims later established, and sections 1202 and 1203 of this title shall apply, but the executors or administrators shall not be liable to distributees for losses to them when required to reimburse creditors. Each distributee shall have a duty of proportionate contribution for any claims brought against one or more other distributees, not to exceed the amount received by the distributee from the estate.

    Added 1975, No. 240 (Adj. Sess.), § 10; amended 1981, No. 150 (Adj. Sess.), § 2; 2009, No. 75 (Adj. Sess.), § 3; 2019, No. 36 , § 1.

History

Revision note. In subsec. (a), substituted "sections 1901 and 1902 of this title" for "the last two preceding sections" to conform reference to V.S.A. style.

Amendments--2019. Section amended generally.

Amendments--2009 (Adj. Sess.). Heading: Substituted "residue" for "and balance to widow, children" following "expenses".

Subsec. (a): Substituted "chapter 42" for "chapters 41 and 45" preceding "of this title".

Amendments--1981 (Adj. Sess.). Subsec. (a): Substituted "chapters 41 and 45" for "chapter 45".

CHAPTER 83. UNIFORM DISCLAIMER OF PROPERTY INTERESTS ACT

Sec.

§ 1951. Right to disclaim interest in property.

A person, or the representative of a deceased, incapacitated or protected person, to whom any property or interest therein devolves, by whatever means, may disclaim it in whole or in part by delivering a written disclaimer under this chapter. The right to disclaim exists notwithstanding any limitation on the interest of the disclaimant in the nature of a spendthrift provision or similar restriction.

Added 1985, No. 130 (Adj. Sess.).

ANNOTATIONS

Analysis

1. Wrongful death action.

Because, under the Wrongful Death Act, damages are based on the loss suffered by the statutory beneficiaries, the spouse and the next of kin, these beneficiaries may not disclaim their status, in favor of the decedent's parents, by executing a disclaimer pursuant to the Uniform Disclaimer of Property Interests Act. Quesnel v. Town of Middlebury, 167 Vt. 252, 706 A.2d 436 (1997).

2. Revocation of disclaimer.

Disclaimers under Vermont's statutory scheme are irrevocable based on claims, such as a unilateral mistake of law, that fall short of equitable claims that would support rescission of a contract or cancellation of an instrument. On the weight of the case law, by virtue of the statutory text, and out of concern for the stability of property rights, disclaimers are not revocable based on disclaimant's mistake of law or simply because the revocation is filed within the statutory time period for filing disclaimers, even if there is no prejudice. Carvalho v. Estate of Carvalho, 186 Vt. 112, 978 A.2d 455 (2009).

One challenging a will normally has the burden of demonstrating the existence of undue influence, but the burden of proof shifts to the proponent of the will when the circumstances connected with the execution of the will are such as the law regards with suspicion; thus, where suspicious circumstances are present, the will is presumed to be the product of undue influence, and it will not be enforced unless the proponent persuades the trier of fact that no undue influence attended the execution of the will. The court sees no reason not to apply the same principle in cases involving the execution or revocation of disclaimers of property interests, particularly in the context of the disclaimer of an inheritance. Carvalho v. Estate of Carvalho, 186 Vt. 112, 978 A.2d 455 (2009).

Although a unilateral mistake of law may not normally be the basis for allowing revocation of a disclaimer, the disclaimant's misunderstanding of the legal effect of a disclaimer in the context of suspicious circumstances may be a critical factor for the fact finder to consider in determining whether there was duress, coercion, undue influence or some other equitable basis for allowing revocation. In other words, the disclaimant's misunderstanding of the legal effect of the disclaimer, when suspicious circumstances are present, may inform the fact finder's determination as to whether the disclaimant's sound judgment or true desire was overcome through coercive tactics. Carvalho v. Estate of Carvalho, 186 Vt. 112, 978 A.2d 455 (2009).

When a mother disclaimed her interest in her son's estate in favor of her nephew, the facts established suspicious circumstances that imposed upon the nephew the burden of showing the absence of undue influence or coercion with respect to the mothers' signing of the disclaimer and precluded summary judgment for the nephew. The nephew, the executor for the son's estate, had advocated for the 92-year-old mother to sign a disclaimer, three weeks after the unexpected death of her son, that would effectively transfer the assets of the estate from the mother to himself as the estate's contingent beneficiary; furthermore, the mother signed the disclaimer, which had not been prepared beforehand, without understanding its consequences and without being given an earlier opportunity to review it herself or with another attorney. Carvalho v. Estate of Carvalho, 186 Vt. 112, 978 A.2d 455 (2009).

§ 1952. Time of disclaimer - Delivery.

  1. Except as provided in subsection (c) of this section, if the property or interest has devolved to the disclaimant under a testamentary instrument or by the laws of intestacy, the disclaimer shall be delivered, as to a present interest, not later than nine months after the death of the deceased owner or deceased donee of a power of appointment and, as to a future interest, not later than nine months after the event determining that the taker of the property or interest has become finally ascertained and his or her interest is indefeasibly vested.  The disclaimer shall be delivered in person or mailed by registered or certified mail to any personal representative, or other fiduciary of the decedent or the donee of the power, to the holder of the legal title to which the interest relates, or to the person entitled to the property or interest in the event of disclaimer.  A copy of the disclaimer shall be filed in the Probate Division of the Superior Court of the district in which proceedings for the administration of the estate of the deceased owner or deceased donee of the power have been commenced.
  2. Except as provided in subsection (c) of this section, if the property or interest has devolved to the disclaimant under a nontestamentary instrument or contract, the disclaimer shall be delivered, as to a present interest, not later than nine months after the effective date of the nontestamentary instrument or contract and, as to a future interest, not later than nine months after the event determining that the taker of the property or interest has become finally ascertained and his or her interest indefeasibly vested.  If the person entitled to disclaim does not have actual knowledge of the existence of the interest, the disclaimer shall be delivered not later than nine months after he or she has actual knowledge of the existence of the interest.  The effective date of a revocable instrument or contract is the date on which the maker no longer has power to revoke it or to transfer to him or herself or another the entire legal and equitable ownership of the interest.  The disclaimer shall be delivered in person or mailed by registered or certified mail to the person who has legal title to or possession of the interest disclaimed.
  3. In any case, as to a transfer creating an interest in the disclaimant made after December 31, 1976, and subject to tax under chapter 11, 12, or 13 of the Internal Revenue Code of 1986, as amended, a disclaimer intended as a qualified disclaimer thereunder must specifically so state and must be delivered not later than nine months after the later of the date the transfer is made or the day on which the person disclaiming attains age 21.
  4. A surviving joint tenant or tenant by the entirety may disclaim as a separate interest any property or interest therein devolving to him or her by right of survivorship. A surviving joint tenant or tenant by the entirety may disclaim the entire interest in any property or interest therein that is the subject of a joint tenancy or tenancy by the entirety devolving to him or her, if the joint tenancy or tenancy by the entirety was created by act of a deceased joint tenant or tenant by the entirety and the survivor did not join in creating the joint tenancy or tenancy by the entirety.
  5. If real property or an interest therein is disclaimed, a copy of the disclaimer shall be recorded in the land records of the town in which the property or interest disclaimed is located.

    Added 1985, No. 130 (Adj. Sess.); amended 1991, No. 146 (Adj. Sess.), § 1, eff. April 28, 1992; 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011.

History

Revision note. In subsec. (c), substituted "the Internal Revenue Code of 1986" for "the Internal Revenue Code of 1954" to conform reference to redesignation of the Code pursuant to section (2)(a) of P.L. 99-514.

Reference in text. Chapters 11, 12 and 13 of the Internal Revenue Code of 1986, referred to in subsec. (c), are codified as 26 U.S.C. §§ 2001 et seq., 2501 et seq., and 2601 et seq., respectively.

Amendments--2009 (Adj. Sess.) Subsec. (a): Substituted "probate division of the superior court" for "probate court."

Amendments--1991 (Adj. Sess.) Subsec. (d): Inserted "or tenant by the entirety" following "joint tenant" in the first sentence and in two places in the second sentence, and "or tenancy by the entirety" following "joint tenancy" wherever it appeared in the second sentence.

Retroactive applicability. Act 1991, No. 146 (Adj. Sess.), § 2, eff. April 28, 1992, shall apply retroactively as a clarification of the provisions of the Uniform Disclaimer of Property Interests Act adopted July 1, 1986.

Cross References

Cross references. Land records of unorganized places, see § 403 of Title 27.

§ 1953. Form of disclaimer.

The disclaimer shall:

  1. describe the property or interest disclaimed;
  2. declare the disclaimer and extent thereof; and
  3. be signed by the disclaimant.

    Added 1985, No. 130 (Adj. Sess.).

ANNOTATIONS

1. Sufficiency of disclaimer.

Disclaimer was plainly valid with regard to the specificity of the named property interest when a mother disclaimed "all right, title and interest" in her son's estate in the body of the disclaimer. This was sufficient for purposes of the statute regarding the form of a disclaimer, which did not require a list of particular assets to be disclaimed, but rather provided only that the disclaimer should "describe the property or interest disclaimed"; the fact that the disclaimer was drafted with a space where specific assets could be listed was of no consequence. Carvalho v. Estate of Carvalho, 186 Vt. 112, 978 A.2d 455 (2009).

Cited. In re Estate of Neil, 152 Vt. 124, 565 A.2d 1309 (1989).

§ 1954. Effect of disclaimer.

  1. If the property or interest devolved to a disclaimant under testamentary instrument or under the laws of intestacy and the deceased owner or donee of a power of appointment has not provided for another disposition, it devolves as if the disclaimant had predeceased the decedent or, if the disclaimant was designated to take under a power of appointment exercised by a testamentary instrument, as if the disclaimant had predeceased the donee of the power.  Any future interest that takes effect in possession or enjoyment after the termination of the estate or interest disclaimed takes effect as if the disclaimant had died before the event determining that the taker of the property or interest had become finally ascertained and his or her interest is indefeasibly vested.  A disclaimer relates back for all purposes to the date of death of the decedent, or of the donee of the power, or the determinative event, as the case may be.
  2. If the property or interest devolved to a disclaimant under a nontestamentary instrument or contract and the instrument or contract does not provide for another disposition:
    1. it devolves as if the disclaimant had died before the effective date of the instrument or contract; and
    2. a future interest that takes effect in possession or enjoyment at or after the termination of the disclaimed interest takes effect as if the disclaimant had died before the event determining that the taker of the property or interest had become finally ascertained and his or her interest indefeasibly vested.  A disclaimer relates back for all purposes to the effective date of the instrument or contract or the date of the determinative event, as the case may be.
  3. The disclaimer or the written waiver of the right to disclaim is binding upon the disclaimant or person waiving and all persons claiming through or under him or her.

    Added 1985, No. 130 (Adj. Sess.).

ANNOTATIONS

Analysis

1. Revocation of disclaimer.

Plain meaning of the statutory language of the Uniform Disclaimer of Property Interests Act precludes revocation; the statute proscribing the effect of disclaimers states that a disclaimer "is binding upon the disclaimant and all persons claiming through or under him or her." Moreover, the legislature provided no method for revoking disclaimers, which is indicative of a legislative intent to preclude revocation. Carvalho v. Estate of Carvalho, 186 Vt. 112, 978 A.2d 455 (2009).

Disclaimant should be treated as if he or she had predeceased the decedent. The statutory language that "the property or interest devolved to a disclaimant under testamentary instrument or under the laws of intestacy ... devolves as if the disclaimant had predeceased the decedent" precludes the revival of the disclaimant's interest by revocation because the property interests of a deceased person are extinguished. Carvalho v. Estate of Carvalho, 186 Vt. 112, 978 A.2d 455 (2009).

2. Effect of disclaimer.

Where a disclaimant has absolved himself of any interest that was properly his by will or intestate succession, the disclaimant is deemed to have predeceased the decedent. Like the predeceased who, by operation of death, is precluded from asserting a claim against a decedent's estate, the disclaimant may not rise some time later to assert his rights as beneficiary. Carvalho v. Estate of Carvalho, 186 Vt. 112, 978 A.2d 455 (2009).

Cited. Quesnel v. Town of Middlebury, 167 Vt. 252, 706 A.2d 436 (1997).

§ 1955. Waiver and bar.

The right to disclaim property or an interest therein is barred by

  1. an assignment, conveyance, encumbrance, pledge, or transfer of the property or interest, or a contract therefor;
  2. an encumbrance, except that the lien for a writ of attachment or a judgment lien shall only bar a disclaimer to the extent of the amount of the lien;
  3. a written waiver of the right to disclaim;
  4. an acceptance of the property or interest or a benefit thereunder; or
  5. a sale of the property or interest under judicial sale made before the disclaimer is effected.

    Added 1985, No. 130 (Adj. Sess.).

§ 1956. Remedy not exclusive.

This chapter does not abridge the right of a person to waive, release, disclaim, or renounce property or an interest therein under any other provisions of law.

Added 1985, No. 130 (Adj. Sess.).

§ 1957. Application.

An interest in property that exists on July 1, 1986 as to which, if a present interest, the time for delivering a disclaimer under this chapter has not expired or, if a future interest, the interest has not become indefeasibly vested or the taker finally ascertained, may be disclaimed within nine months after July 1, 1986.

Added 1985, No. 130 (Adj. Sess.).

§ 1958. Uniformity of application and construction.

This chapter shall be applied and construed to effectuate its general purpose to make uniform the law with respect to the subject of this chapter among states enacting it.

Added 1985, No. 130 (Adj. Sess.).

§ 1959. Short title.

This chapter may be cited as the Uniform Disclaimer of Property Interests Act.

Added 1985, No. 130 (Adj. Sess.).

CHAPTER 85. GENERAL PRINCIPLES

Sec.

§ 1971. Intentional killing; offender not to benefit.

  1. The acquisition of any property, interest, power, or benefit by a person as the result of the person's commission of an intentional and unlawful killing shall be treated in accordance with the principle that a killer cannot profit from his or her wrong, and a court shall have the power to distribute, reform, revoke, or otherwise dispose of such property, interest, power, or benefit in accord with the principles of this section.
  2. The distribution, reformation, revocation, or disposition of any property, interest, power, or benefit subject to subsection (a) of this section shall not affect any valid liens or mortgages on such property, interest, power, or benefit.

    Added 2009, No. 55 , § 3.

PART 4 Fiduciary Relations

CHAPTER 101. PROBATE BONDS; EXECUTORS, ADMINISTRATORS, TRUSTEES, GUARDIANS

Sec.

History

Applicability of 2017 (Adj. Sess.) amendment. 2017, No. 195 (Adj. Sess.), § 19 provides: "This act [which amended this chapter] shall take effect on July 1, 2018 and shall apply to wills executed or offered for admission on or after that date."

§ 2101. Probate bonds; amount; sureties; for whose benefit; to whom taken.

Bonds required to be taken by order of the Probate Division of the Superior Court shall be for such sum and with such surety or sureties as the court directs, except where the law otherwise prescribes. The bonds shall be for the security and benefit of all persons interested and shall be taken to the Probate Division of the Superior Court except where they are to be taken to the adverse party.

Amended 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011; 2017, No. 195 (Adj. Sess.), § 13.

History

Source. V.S. 1947, § 3137. P.L. § 3052. G.L. § 3500. P.S. § 3018. V.S. § 2622. 1884, No. 110 , § 3. R.L. § 2301. G.S. 60, § 1. R.S. 56, § 1. 1821, p. 34. R. 1797, p. 221, § 26. R. 1787, p. 56.

Amendments--2017 (Adj. Sess.). Substituted "The" for "Such" preceding "bonds" in the second sentence.

Amendments--2009 (Adj. Sess.) Substituted "probate division of the superior court" for "probate court" twice.

ANNOTATIONS

1. Bond to probate court.

Bond filed in probate court, given to judge of probate by name, with a designation of his official character as judge of probate for that district, and in which the solvendum was "unto the said judge or his successor in said office," was, in legal effect, a bond to probate court. Probate Court v. Strong, 27 Vt. 202 (1853).

§ 2102. Foreign company; certificate of authority; fee.

A Probate Division of the Superior Court shall not accept a foreign fidelity insurance company as surety on a bond required to be filed in the court, unless the company is authorized to do business in this State and has filed in the court a certificate of the Commissioner of Financial Regulation that the company is so authorized. A fee of $1.00 for each certificate so issued shall be paid to the Commissioner of Financial Regulation for the benefit of the State by the company requesting its issuance.

Amended 1989, No. 225 (Adj. Sess.), § 25(b); 1995, No. 180 (Adj. Sess.), § 38(a); 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011; 2011, No. 78 (Adj. Sess.), § 2, eff. April 2, 2012; 2017, No. 195 (Adj. Sess.), § 13.

History

Source. V.S. 1947, § 3138. P.L. § 3053. 1929, No. 47 , § 1. G.L. § 3501. 1917, No. 144 , § 1. 1917, No. 160 , § 2. P.S. § 3019. R. 1906, § 2900. 1904, No. 109 , § 1. 1900, No. 58 , § 2. 1898, No. 77 , §§ 1, 2.

Amendments--2017 (Adj. Sess.). Substituted "the" for "such" throughout section.

Amendments--2011 (Adj. Sess.). Substituted "commissioner of financial regulation" for "commissioner of banking, insurance, securities, and health care administration".

Amendments--2009 (Adj. Sess.) Substituted "probate division of the superior court" for "probate court."

Amendments--1995 (Adj. Sess.) Substituted "commissioner of banking, insurance, securities, and health care administration" for "commissioner of banking, insurance, and securities" in the first and second sentences.

Amendments--1989 (Adj. Sess.). Substituted "commissioner of banking, insurance, and securities" for "commissioner of banking and insurance" wherever it appeared.

Statutory revision. 2011, No. 78 (Adj. Sess.), § 2 provides: "The legislative council, in its statutory revision authority under 2 V.S.A. § 424, is directed to replace the term 'commissioner of banking, insurance, securities, and health care administration' in the Vermont Statutes Annotated wherever it appears with the term 'commissioner of financial regulation'; and to replace the term 'department of banking, insurance, securities, and health care administration' wherever it appears with the term 'department of financial regulation'".

Cross References

Cross references. Acceptance of foreign surety bond without certificate, see Rule 68(c), Vermont Rules of Probate Procedure.

§ 2103. Record; evidence.

Upon acceptance and approval of bonds required to be given to a Probate Division of the Superior Court, the bonds shall be filed and docketed in the office of the court to which they are given. A copy of the bond duly certified by the court shall be evidence in all cases as to the facts stated in it, as though the original were produced.

Amended 1971, No. 179 (Adj. Sess.), § 7; 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011; 2017, No. 195 (Adj. Sess.), § 13.

History

Source. V.S. 1947, § 3139. P.L. § 3054. G.L. § 3502. P.S. § 3020. 1900, No. 37 , § 1.

Amendments--2017 (Adj. Sess.). Substituted "the" for "such" throughout section; substituted "of the bond" for "thereof" preceding "duly"; deleted "therein" preceding "stated" and inserted "in it" following "stated".

Amendments--2009 (Adj. Sess.) Substituted "probate division of the superior court" for "probate court."

Amendments--1971 (Adj. Sess.). Substituted "docketed" for "recorded" following "filed and" in the first sentence.

§ 2104. Motion, when bond is insufficient.

If a surviving spouse, heir, creditor, devisee, or legatee of a decedent or their legal representatives, or a person interested in a trust estate, considers the bond given to the Probate Division of the Superior Court by a fiduciary insufficient, they may file a motion for an additional bond. The court shall schedule a hearing and notice shall be given as provided by the Rules of Probate Procedure. If it appears to the court that the bond is not sufficient, it shall order the fiduciary to give a new and sufficient bond within the time limited. If the new bond is not filed within that new time, the court shall remove the fiduciary and fill the vacancy.

Amended 1985, No. 144 (Adj. Sess.), § 92; 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011; 2017, No. 195 (Adj. Sess.), § 13.

History

Source. V.S. 1947, § 3140. P.L. § 3055. G.L. § 3503. P.S. § 3021. 1904, No. 71 , § 1. V.S. § 2623. 1888, No. 81 , §§ 3, 4. R.L. § 2302, G.S. 48, § 45. 1842, No. 21 . R.S. 111, § 12. 1821, p. 35. R. 1797, p. 242, § 72. R. 1797, p. 246, § 76.

Revision note. In the section heading, substituted "Motion" for "Petition" for purposes of conformity with the text of the section, as amended.

Amendments--2017 (Adj. Sess.). Deleted "thereupon" preceding "schedule" in the second sentence.

Amendments--2009 (Adj. Sess.) Substituted "probate division of the superior court" for "probate court."

Amendments--1985 (Adj. Sess.). Section amended generally.

Cross References

Cross references. Notice, see Rule 4, Vermont Rules of Probate Procedure.

Scheduling of hearings, see Rule 40, Vermont Rules of Probate Procedure.

§ 2105. Surety may move for new bond and settlement; removal.

If the surety for a fiduciary considers himself or herself in danger of being injured thereby, a motion may be filed to order the fiduciary to settle the account and give a new bond. Upon notice and hearing, if it appears to the Probate Division of the Superior Court that the surety is in danger of being injured, it shall order the fiduciary to settle the account and give a new bond. When a new bond is filed and approved, the surety shall be discharged. If the fiduciary does not settle the accounts and give a new bond when so ordered, the court shall remove the fiduciary and fill the vacancy.

Amended 1985, No. 144 (Adj. Sess.), § 93; 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011; 2017, No. 195 (Adj. Sess.), § 13.

History

Source. V.S. 1947, § 3141. P.L. § 3056. G.L. § 3504. P.S. § 3022. 1904, No. 71 , § 2. V.S. § 2624. 1888, No. 81 , §§ 3, 4. R.L. § 2302. G.S. 48, § 45. 1842, No. 21 . R.S. 111, § 12. 1821, p. 35. R. 1797, p. 242, § 72. R. 1797, p. 246, § 76.

Revision note. In the section catchline, substituted "move" for "petition" for purposes of conformity with the text of the section, as amended.

Amendments--2017 (Adj. Sess.). Deleted "probate division of the superior" preceding "court" in the fourth sentence.

Amendments--2009 (Adj. Sess.) Substituted "probate division of the superior court" for "probate court" twice.

Amendments--1985 (Adj. Sess.). Section amended generally.

Cross References

Cross references. Notice, see Rule 4, Vermont Rules of Probate Procedure.

Scheduling of hearings, see Rule 40, Vermont Rules of Probate Procedure.

ANNOTATIONS

1. Discharge of surety.

Surety on bond of a special administrator remains liable until trust is terminated and he has rendered his final account, unless discharged as provided by this section, and so, where a special administrator continues to act as such after final establishment of will naming him as executor, surety on his official bond remains liable. American Surety Co. v. Gaskill's Administrator, 85 Vt. 358, 82 A. 218 (1912).

§ 2106. New bond.

When a fiduciary desires to file a new bond with sureties in substitution for the bond then on file, the Probate Division of the Superior Court, in its discretion and upon notice, may allow a new bond to be filed. Upon approving the new bond, the court may accept it in substitution for any and all bonds previously filed by the fiduciary and discharge the sureties on the former bond or bonds from liability accruing after the substituted bond is filed.

Amended 1985, No. 144 (Adj. Sess.), § 94; 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011; 2017, No. 195 (Adj. Sess.), § 13.

History

Source. V.S. 1947, § 3143. P.L. § 3058. G.L. § 3506. P.S. § 3024. 1904, No. 71 , § 4.

Amendments--2017 (Adj. Sess.). Substituted "it" for "the same" following "accept".

Amendments--2009 (Adj. Sess.) Substituted "probate division of the superior court" for "probate court."

Amendments--1985 (Adj. Sess.). Section amended generally.

§ 2107. Discharge of executor, administrator, trustee, guardian; account; exoneration of surety.

When an executor, administrator, trustee, or guardian has paid and delivered over to the persons entitled to it the money or other property in his or her hands as required by a decree of the Probate Division of the Superior Court, he or she may perpetuate the evidence thereof by presenting to the court within one year after the decree is made or within a time thereafter that the court allows, an account of the payment or the delivery over of the property. If it is proved to the satisfaction of the court and verified by the oath of the accountant, the account shall be allowed as his or her final discharge and ordered to be recorded. The discharge shall forever exonerate the accountant and his or her sureties from liability under the decree, unless his or her account is impeached for fraud or manifest error.

Amended 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011; 2017, No. 195 (Adj. Sess.), § 13.

History

Source. V.S. 1947, § 3142. P.L. § 3057. G.L. § 3505. P.S. § 3023. 1904, No. 71 , § 3.

Amendments--2017 (Adj. Sess.). Section amended generally.

Amendments--2009 (Adj. Sess.) Substituted "probate division of the superior court" for "probate court."

§ 2108. How prosecuted.

Bonds given to the Probate Division of the Superior Court shall be prosecuted in the Superior Court of the county in which they were given for the benefit of those injured by the breach of their conditions, in the following manner:

  1. A person claiming to be injured by a breach of the condition of a bond may file a motion for permission to prosecute the bond and shall give a bond to the adverse party to the satisfaction of the Probate Division of the Superior Court, on the condition that he or she will prosecute it to effect and pay the costs awarded if recovery is not obtained.
  2. The Probate Division of the Superior Court shall grant permission to prosecute the bond, and when the fees have been paid, shall furnish to the applicant a certified copy of the bond, with a certificate that leave to prosecute it has been granted, and the name and residence of the applicant.
  3. The applicant shall cause his or her name to be indorsed as prosecutor upon the writ and shall file the copy of the bond and the certificate furnished by the Probate Division of the Superior Court, with the writ, in the Superior Court to which and when it is returnable; and the applicant shall be deemed to be the prosecutor of the bond.
  4. The complaint on the bond shall definitely assign and set forth the breaches of the conditions on which the prosecutor relies.
  5. The Superior Court to which the writ is returned shall render judgment, as on default, for the penalty of the bond in favor of the Probate Division of the Superior Court and against the defendants, or those defendants who do not comply with the terms provided in subdivision (6) of this section, but costs shall not be taxed on the judgment.
  6. The defendants who wish to resist the judgment shall, on or before 21 days after service of the writ, plead a general denial, and, with their plea, file their affidavit, stating that they believe or are advised that they did not execute or deliver the bond; or they shall demur to the complaint.
  7. On trial, if the issue on the plea or demurrer is found in favor of the plaintiff, judgment shall be rendered for the penalty of the bond, as provided in subdivision (5) of this section, and the prosecutor shall recover against the defendants entering the plea or demurrer the costs of the action, and have execution for them in his or her own name.
  8. When judgment is rendered for the penalty of the bond against all the defendants, the judgment shall remain in force as security for other breaches of the conditions of the bond, which may be afterwards assigned and proved.
  9. The action shall thereafter proceed and be prosecuted in the name of the prosecutor, on the breaches assigned. Upon prevailing, the prosecutor shall have judgment in his or her own name for damages and costs, but if judgment is rendered for the defendants on an issue joined in the action or on nonsuit, they shall recover double costs against the prosecutor.

    Amended 1985, No. 144 (Adj. Sess.), § 95; 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011; 2017, No. 195 (Adj. Sess.), § 13.

History

Source. V.S. 1947, § 3144. 1947, No. 202 , § 3167. 1945, No. 29 , § 31. P.L. § 3059. G.L. § 3507. P.S. § 3025. V.S. § 2625. R.L. § 2303. G.S. 60, § 2. R.S. 56, § 2. 1821, p. 34. R. 1797, p. 260, § 103.

Revision note. In subdiv. (1), deleted a comma following "condition of a bond" for purposes of clarity.

In subdiv. (5), substituted "subdivision (6) of this section" for "the following subdivision of this section" for purposes of clarity.

In subdiv. (7), substituted "subdivision (5) of this section" for "the fifth subdivision of this section" to conform reference to V.S.A. style.

Amendments--2017 (Adj. Sess.). Section amended generally.

Amendments--2009 (Adj. Sess.) Substituted "probate division of the superior court" for "probate court" throughout the section.

Amendments--1985 (Adj. Sess.). Rewrote the section heading, substituted "superior" for "county" preceding "court of the county" in the introductory paragraph, rewrote subdiv. (1), deleted "his" preceding "paying" and "thereupon" preceding "grant" and substituted "permission" for "leave" thereafter in subdiv. (2), inserted "or her" following "his" and substituted "superior" for "county" preceding "court to which" in subdiv. (3), substituted "superior" for "county" preceding "court to which" in subdiv. (5), inserted "or her" following "his" at the end of subdiv. (7), and rewrote the second sentence of subdiv. (9).

Cross References

Cross references. Actions upon bonds, see § 2303 of this title.

Pleadings generally, see Rules 7-10, Vermont Rules of Probate Procedure.

Presentation of defenses and objections, see Rule 12, Vermont Rules of Probate Procedure.

Signing of pleadings, see Rule 11, Vermont Rules of Probate Procedure.

ANNOTATIONS

Analysis

1. Construction with other laws.

Section 2303 of this title, providing that bond of a trustee appointed under provisions in a will could be sued when court of chancery upon proper application so ordered, did not give court of chancery exclusive power over subject, but a power concurrent with that of probate court, provided in this section. Robinson v. Stanley, 38 Vt. 570 (1866).

2. Law governing.

Creditor who had proved his claim against an estate in the jurisdiction of principal administration in Wisconsin, was not entitled to prosecute an administrator's bond given on grant of ancillary administration in this state, alleged breach whereof was nonpayment of a balance found in hands of ancillary administrator on settlement of his administration account, and ordered by probate court to be paid over to the principal administrator in Wisconsin, by reason of which nonpayment principal administrator was unable to pay prosecutor's claim. Probate Court v. Brainard, 48 Vt. 620 (1876).

3. Prosecution of bond .

In an action on a probate bond county court had authority to cause name of prosecutor to be stricken from record, when he had not complied with this section, nor made application to probate court for leave to prosecute; nor given a bond to adverse party. Probate Court v. Hull, 58 Vt. 306, 3 A. 472 (1885).

It was not essential to maintenance of a suit upon a bond taken to probate court, that a copy of bond, and certificate of leave from probate court to prosecute it, should be filed in county court at same time when the writ was returned there. Probate Court v. Niles, 32 Vt. 775 (1860).

*4. By prosecutor.

Probate court cannot, per se, move in prosecution of probate bonds, since prosecutor is real plaintiff; and he must be one who bears such relation to alleged breaches of condition of bond, that he may have been injured thereby; and his right to prosecute must appear from declaration, or declaration will be demurrable. Probate Court v. Brainard, 48 Vt. 620 (1876).

*5. Name in which prosecuted.

When leave was granted to attorney of several heirs to prosecute a probate bond for them, it was not necessary that his name be endorsed on writ. Probate Court v. Sawyer, 59 Vt. 57, 7 A. 281 (1886).

When an applicant prosecutes a bond, having obtained permission from probate court, and neglects to cause his name to be indorsed on writ, as prosecutor of the same, and case passes to subsequent terms of court, it may be waiver of objection. Probate Court v. Strong, 24 Vt. 146 (1852).

6. Pleading.

In an action on appeal bond, where defendant proceeded to trial without demurrer to declaration, lack of particularity in assignments of breach was cured by verdict, and so could not be questioned by a motion in arrest of judgment. Probate Court v. Dodge, 87 Vt. 133, 88 A. 529 (1913).

7. Evidence.

In a suit on a probate bond for benefit of a creditor, breach assigned being the nonpayment of a dividend struck in the probate court, and on plea of payment, receipts showing payment to plaintiff by a former administrator were admissible in evidence. Gordon v. Clapp, 5 Vt. 129 (1833).

8. Appeal.

Ordinarily, supreme court would treat as a misentry a case coming up from a judgment of county court for penalty of a probate bond before damages were ascertained; but where case was fully argued, and views of court would finally determine it, it was made an exception to the general rule, and heard. Probate Court v. Brainard, 48 Vt. 620 (1876).

§ 2109. Person injured; action on bond or judgment.

After a person is injured by the breach of the condition of the bond, he or she may bring from time to time an action in his or her own name on the judgment rendered for the penalty of the bond. In that action, he or she shall assign and set forth the breaches on which he or she relies and may recover the damages that he or she proves, with costs.

Amended 1971, No. 185 (Adj. Sess.), § 177, eff. March 29, 1972; 2017, No. 195 (Adj. Sess.), § 13.

History

Source. V.S. 1947, § 3145. P.L. § 3060. G.L. § 3508. P.S. § 3026. V.S. § 2626. R.L. § 2304. G.S. 60, § 3. R.S. 56, § 3. 1821, p. 35. R. 1797, p. 260, § 103.

Amendments--2017 (Adj. Sess.). Substituted "the damages that" for "such damage as" following "recover".

Amendments--1971 (Adj. Sess.). Substituted "bring" for "sue out and prosecute" preceding "from time to time" and "an action" for "a scire facias" thereafter in the first sentence, and substituted "that action" for "such scire facias" preceding "he shall" and made a minor change in punctuation in the second sentence.

ANNOTATIONS

Cited. Hoit v. Bradley, 1 D. Chip. 262 (1814).

§ 2110. Claims for breach may be prosecuted by representatives.

Claims for damages for breach of the conditions of a bond may be prosecuted by an executor, administrator, or guardian in behalf of those he or she represents, in the same manner as by persons living. The claims may be prosecuted against the representatives of deceased persons as other claims against decedents.

Amended 2017, No. 195 (Adj. Sess.), § 13.

History

Source. V.S. 1947, § 3146. P.L. § 3061. G.L. § 3509. P.S. § 3027. V.S. § 2627. R.L. § 2305. G.S. 60, § 4. R.S. 56, § 4.

Amendments--2017 (Adj. Sess.). Substituted "The" for "Such" preceding "claims".

ANNOTATIONS

1. Nature of remedy.

By suing on an executor's bond, under this section, an administrator de bonis non of testator's widow, appointed after executor's defalcation, did not waive right, given to such widow by section 1721 of this title, to demand and receive the estate decreed to her from any other person having some in his possession, and a surety, lawfully required to pay such legacy, by subrogation has same right. Hall v. Windsor Savings Bank, 97 Vt. 125, 121 A. 582, 124 A. 593 (1923).

CHAPTER 103. MORTGAGES AND LEASES BY EXECUTORS, ADMINISTRATORS, TRUSTEES, OR GUARDIANS

Sec.

History

Applicability of 2017 (Adj. Sess.) amendment. 2017, No. 195 (Adj. Sess.), § 19 provides: "This act [which amended this chapter] shall take effect on July 1, 2018 and shall apply to wills executed or offered for admission on or after that date."

Cross References

Cross references. Mortgages generally, see 27 V.S.A. § 441 et seq..

Sale of realty held by executor or administrator under mortgage, see § 1655 of this title.

§ 2201. Mortgage of property by fiduciary; motion; order; license.

  1. On motion and with the written consent of the interested persons, or after hearing, the Probate Division of the Superior Court may authorize a fiduciary to mortgage any of the real estate or to mortgage, pledge, or assign any of the personalty of the estate for the benefit of the estate. The court may authorize a fiduciary to enter into an agreement for the extension or renewal of an existing mortgage or lien or of any other mortgage, lien, pledge, or assignment created under the provisions of this chapter.
  2. A motion filed under this section shall describe the property to be mortgaged, pledged, or assigned and shall include the purpose of the obligation, the limits of the principal amount, the interest rate, and the term of the note to be secured by the mortgage. A license issued by the Probate Division pursuant to this section shall fix the terms and conditions under which the property may be mortgaged, pledged, or assigned. The court may order all or any part of the obligation secured by the mortgage to be paid from time to time out of the income of the property mortgaged. A certified copy of the license shall be recorded in the office where the mortgage is recorded.

    Amended 1985, No. 144 (Adj. Sess.), § 96; 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011; 2017, No. 195 (Adj. Sess.), § 14.

History

Source. V.S. 1947, § 2976. P.L. § 2909. G.L. § 3363. 1912, No. 111 . 1908, No. 73 , § 1.

Revision note. In the section heading, substituted "fiduciary" for "executor, administrator, trustee, or guardian" for purposes of conformity with the text of the section, as amended.

Amendments--2017 (Adj. Sess.). Section amended generally.

Amendments--2009 (Adj. Sess.) Substituted "probate division of the superior court" for "probate court" twice.

Amendments--1985 (Adj. Sess.). Section amended generally.

Cross References

Cross references. Notice, see Rule 4, Vermont Rules of Probate Procedure.

Scheduling of hearings, see Rule 40, Vermont Rules of Probate Procedure.

ANNOTATIONS

Analysis

0.5. Construction.

Plain language of the licensing statutes does not distinguish between guardians in voluntary or involuntary guardianships. Instead, the statutes refer generally to "guardians" or "fiduciaries," which include guardians. Citifinancial, Inc. v. Balch, 195 Vt. 21, 86 A.3d 415 (2013).

1. Proof of license.

Mortgagee, in seeking to take advantage of a license to mortgage property issued by the probate court, had the burden of establishing that the license was issued within the authorization of the statutes and met the legal requirements of a valid license authorizing the execution of mortgages to the mortgagee. Dartmouth Savings Bank v. Estate of Schoen, 129 Vt. 315, 276 A.2d 637 (1971).

2. Guardian's powers.

Where, on the face of the record, it was beyond the power of claimed legal guardian to consent to and approve the granting of the license to mortgage on behalf of her minor devisees, the acceptance of the probate court of the application with such consent and approval as guardian was not to be taken in the nature of a decree or a valid license in that respect. Dartmouth Savings Bank v. Estate of Schoen, 129 Vt. 315, 276 A.2d 637 (1971).

3. Approval of court.

When it was undisputed that the guardian in a voluntary guardianship failed to comply with the statute requiring probate court approval for the issuance of a mortgage deed, the mortgage deed was therefore ineffective. Citifinancial, Inc. v. Balch, 195 Vt. 21, 86 A.3d 415 (2013).

Licensing statutes for guardianships do give the probate court the authority to restrict the terms of the underlying note as a condition of its approval of a mortgage; the court may withhold approval of a mortgage deed if the guardian fails to conform the underlying note to the court's requirements. But it does not follow that the statutes require probate court approval of a promissory note in its own right, rather than as a condition to the approval of a mortgage deed. Citifinancial, Inc. v. Balch, 195 Vt. 21, 86 A.3d 415 (2013).

4. Applicability.

Vermont Supreme Court rejects the suggestion that the licensing requirements pertaining to guardians do not apply when a ward subject to a voluntary guardianship, as opposed to the guardian, seeks to sell property. Citifinancial, Inc. v. Balch, 195 Vt. 21, 86 A.3d 415 (2013).

§ 2202. Repealed. 2017, No. 195 (Adj. Sess.), § 14.

History

Former § 2202. Former § 2202, relating to motions and decrees, was derived from V.S. 1947, § 2977; P.L. § 2910; G.L. § 3364; 1908, No. 73 , § 2 and amended by 1985, No. 144 (Adj. Sess.), § 97; 2009, No. 154 (Adj. Sess.), § 238a.

Annotations From Former § 2202

1. Applicability.

Vermont Supreme Court rejects the suggestion that the licensing requirements pertaining to guardians do not apply when a ward subject to a voluntary guardianship, as opposed to the guardian, seeks to sell property. Citifinancial, Inc. v. Balch, 195 Vt. 21, 86 A.3d 415 (2013).

2. Approval of court.

Licensing statutes for guardianships do give the probate court the authority to restrict the terms of the underlying note as a condition of its approval of a mortgage; the court may withhold approval of a mortgage deed if the guardian fails to conform the underlying note to the court's requirements. But it does not follow that the statutes require probate court approval of a promissory note in its own right, rather than as a condition to the approval of a mortgage deed. Citifinancial, Inc. v. Balch, 195 Vt. 21, 86 A.3d 415 (2013).

§ 2203. Lease; of property by fiduciary; order; license.

  1. On motion and with the written consent of the interested parties, or after hearing, the Probate Division of the Superior Court may authorize a fiduciary to lease all or part of the real or personal property of the estate for the benefit of the estate. The court may authorize a fiduciary to enter into an agreement for the extension or renewal of an existing lease, or of any other lease created under the provisions of this chapter. A lease for a period of less than seven consecutive months shall not require a license.
  2. A motion filed under this section shall describe the property to be leased and shall include the prospective lessee, if known, the proposed use of the leased property, the limits of the proposed term of the lease, and the proposed rental. A license issued by the Probate Division of the Superior Court pursuant to this section shall fix the terms and conditions under which the property may be leased.

    Amended 1985, No. 144 (Adj. Sess.), § 98; 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011; 2017, No. 195 (Adj. Sess.), § 14.

History

Source. V.S. 1947, § 2978. 1947, No. 202 , § 3001. P.L. § 2911. G.L. § 3365. 1908, No. 73 , § 3.

Amendments--2017 (Adj. Sess.). Section amended generally.

Amendments--2009 (Adj. Sess.) Substituted "probate division of the superior court" for "probate court."

Amendments--1985 (Adj. Sess.). Substituted "motion of a fiduciary" for "the petition of an executor, administrator, trustee or guardian" following "upon" and "the fiduciary" for "he" preceding "considers" and made other minor stylistic changes.

Cross References

Cross references. Notice, see Rule 4, Vermont Rules of Probate Procedure.

Scheduling of hearings, see Rule 40, Vermont Rules of Probate Procedure.

Service of motion for license to lease real or personal estate, see Rule 5.1, Vermont Rules of Probate Procedure.

§ 2204. Repealed. 1985, No. 144 (Adj. Sess.), § 163.

History

Former § 2204, relating to notices, was derived from V.S. 1947, § 2979; P.L. § 2912; G.L. § 3366; 1908, No. 74 .

CHAPTER 105. TRUSTS AND TRUSTEES

Sec.

History

Applicability of 2017 (Adj. Sess.) amendment. 2017, No. 195 (Adj. Sess.), § 19 provides: "This act [which amended this chapter] shall take effect on July 1, 2018 and shall apply to wills executed or offered for admission on or after that date."

Cross References

Cross references. Embezzlement by trustee, see § 2533 of Title 13.

ANNOTATIONS

1. Jurisdiction of probate court.

A probate court clearly has jurisdiction to order an accounting by the trustee under a will. In re Trusts u/w Proctor, 140 Vt. 6, 433 A.2d 300 (1981).

§ 2301. Repealed. 2009, No. 20, § 7.

History

Former § 2301, relating to trustees; bond; when required, was derived from V.S. 1947, § 3106; P.L. § 3022; G.L. § 3472; 1915, No. 99 ; P.S. § 2990; V.S. § 2600; R.L. § 2284; G.S. 59, § 1; 1861, No. 18 , § 1; R.S. 55, § 1 and amended by 1985, No. 144 (Adj. Sess.), § 99.

Annotations From Former § 2301

1. Change in circumstances.

Where will, in creating a trust, directed that trustee named shall not be required to give bonds, and trustee entered upon trust in accordance therewith, probate court could require of such trustee a bond, in view of a subsequent change in his circumstances. Foss v. Sowles, 62 Vt. 221, 19 A. 984 (1890).

Where one was both executor and trustee, and by will was not required to execute a bond, probate court, if deemed proper from a subsequent change of executor's circumstances, could order him to give a bond; and such order was not appealable to county court. Felton v. Sowles, 57 Vt. 382 (1885).

Cited. First National Bank v. Harvey, 111 Vt. 281, 16 A.2d 184 (1940).

§ 2302. Repealed. 2009, No. 20, § 8.

History

Former § 2302, relating to conditions, was derived from V.S. 1947, § 3108; P.L. § 3024; 1933, No. 157 , § 2811; G.L. §§ 3473, 3474; P.S. § 2991; V.S. § 2601; R.L. § 2285; G.S. 59, § 3; R.S. 55, § 2.

§ 2303. Repealed. 2017, No. 195 (Adj. Sess.), § 15.

History

Former § 2303. Former § 2303, relating to bond filing and suit, was derived from V.S. 1947, § 3108; P.L. § 3024; 1933, No. 157 , § 2811; G.L. § 3474; P.S. § 2992; V.S. § 2602; R.L. § 2286; G.S. 59, § 2; 1861, No. 18 , § 2 and amended by 1971, No. 179 (Adj. Sess.), § 8; 1973, No. 193 (Adj. Sess.), § 3; 1985, No. 144 (Adj. Sess.), § 100; 2009, No. 154 (Adj. Sess.), § 238a.

§ 2304. Repealed. 2009, No. 20, § 9.

History

Former § 2304, relating to bond when more than one trustee, was derived from V.S. 1947, § 3109; P.L. § 3025; G.L. § 3475; P.S. § 2993; V.S. § 2603; R.L. § 2287; G.S. 59, § 4; R.S. 55, § 3.

§§ 2305-2310. Repealed. 2017, No. 195 (Adj. Sess.), § 15.

History

Former §§ 2305-2310. Former § 2305, relating to trustees of absent persons - Definition, was derived from V.S. 1947, § 3110; P.L. § 3026; G.L. § 3476; P.S. § 2994; 1906, No. 86 , § 1; V.S. § 2604; 1884, No. 110 , § 1 and amended by 2009, No. 154 (Adj. Sess.), § 238a; 2013, No. 96 (Adj. Sess.), § 63.

Former § 2306, relating to trustees; appointment over absent person's estate, was derived from V.S. 1947, § 3111; P.L. § 3026; G.L. § 3476; P.S. § 2994; 1906, No. 86 , § 1; V.S. § 2604; 1884, No. 110 , § 1 and amended by 1967, No. 147 , §§ 13, 53(b); 1985, No. 144 (Adj. Sess.), § 101; 2009, No. 154 (Adj. Sess.), § 238a.

Former § 2307, relating to notice of appointment; account; payment to trustee; appeal, was derived from V.S. 1947, § 3112; P.L. § 3027; G.L. § 3477; P.S. § 2995; 1906, No. 86 , § 3 and amended by 1985, No. 144 (Adj. Sess.), § 102; 2009, No. 154 (Adj. Sess.), § 238a.

Former § 2308, relating to powers of trustees for absent persons, was derived from V.S. 1947, § 3113; P.L. § 3028; G.L. § 3478; P.S. § 2996; V.S. § 2605; 1884, No. 110 , § 4.

Former § 2309, relating to claims against estate of absent person; procedure, was derived from V.S. 1947, § 3114; P.L. § 3029; G.L. § 3479; P.S. § 2997; V.S. § 2606; 1884, No. 110 , § 5.

Former § 2310, relating to appearance of absent person; surrender of property, was derived from V.S. 1947, § 3115; P.L. § 3030; G.L. § 3480; P.S. § 2998; 1906, No. 86 , § 2; V.S. § 2607.

§ 2311. Repealed. 2009, No. 20, § 10.

History

Former § 2311, relating to trustees of nonresident decedents; nonresident trustee; decree, was derived from V.S. 1947, § 3116; P.L. § 3031; 1931, No. 42 , § 1 and amended by 1985, No. 144 (Adj. Sess.), § 103.

§ 2312. Repealed. 2009, No. 20, § 11.

History

Former § 2312, relating to trustee failing to give bond; effect, was derived from V.S. 1947, § 3117; P.L. § 3032; G.L. § 3481; P.S. § 2999; V.S. § 2608; R.L. § 2288; G.S. 59, § 5; R.S. 55, § 4.

Annotations From Former § 2312

1. Removal.

Where trustee neglected to furnish a bond in compliance with the order, he became subject to removal under this section. Foss v. Sowles, 62 Vt. 221, 19 A. 984 (1890).

Cited. Citibank, N.A. v. Nichols, 151 Vt. 220, 559 A.2d 156 (1989).

§ 2313. Repealed. 2009, No. 20, § 12.

History

Former § 2313, relating to resignation, removal and appointment of trustees; trustee may decline or resign, was derived from V.S. 1947, § 3118; P.L. § 3033; G.L. § 3482; P.S. § 3000; V.S. § 2609; R.L. § 2289; G.S. 59, § 6; R.S. 55, § 5.

§ 2314. Repealed. 2009, No. 20, § 13.

History

Former § 2314, relating to trustee may be removed; special fiduciary; petition for removal by beneficiary or co-trustee, was derived from V.S. 1947, § 3119; P.L. § 3034; G.L. § 3483; P.S. § 3001; 1896, No. 47 , §§ 1, 2; V.S. § 2610; R.L. § 2290; 1867, No. 52 ; G.S. 59, § 7; R.S. 55, § 6 and amended by 1985, No. 144 (Adj. Sess.), § 104; 2003, No. 106 (Adj. Sess.), § 2; 2005, No. 213 (Adj. Sess.), § 2.

Annotations From Former § 2314

1. Notice.

Trustee must be removed upon notice as provided in this section; a trusteeship does not become vacant ipso facto. Foss v. Sowles, 62 Vt. 221, 19 A. 984 (1890).

Cited. In re Trust Estate of Flynn, 158 Vt. 268, 609 A.2d 984 (1992).

§ 2315. Repealed. 2009, No. 20, § 14.

History

Former § 2315, relating to additional trustee may be appointed, was derived from V.S. 1947, § 3120; P.L. § 3035; G.L. § 3484; P.S. § 3002; 1896, No. 48 , § 1 and amended by 1985, No. 144 (Adj. Sess.), § 105.

§ 2316. Repealed. 2009, No. 20, § 15.

History

Former § 2316, relating to vacancy, new trustee appointed, was derived from V.S. 1947, § 3121; P.L. § 3036; G.L. § 3485; P.S. § 3003; V.S. § 2611; R.L. § 2291; G.S. 59, §