Lenehan v. Spaulding , 57 Vt. 115 ( 1884 )

The opinion of the court was delivered by

Royce, Cli. J.

This action was brought under No. 82 of the laws of 1876, now sec. 2245 of the R. L., to recover compensation for the share which the female plaintiff was entitled to in the intestate estate of Catherine Driscoll, and which was distributed to the defendants by an order of the Probate Court on the 17th day of February, 1877.

Before the passage of that law there was no statute remedy for an heir of an intestate estate who had been left out in the distribution of the estate to recover his share, or compensation therefor. That law provides, that where a person entitled to a distributive share of such an estate is absent and unheard of for fifteen years, five of which are after the death of the intestate, the Probate Court may order such share to be distributed among his lineal heirs, if he have any; otherwise among the heirs of such deceased person. It is claimed by the defendants that the requirements of the law were not so observed by the Probate Court as to justify the making of such an order.

The law required that before any such order was made the court should cause notice to be given as notice is given on the settlement of an administrator’s account, and such other notice, by publication or otherwise, as the court might deem proper. The notice required before the settlement of an administrator’s account is to be given personally to such persons as the Probate Court should judge to be interested, or by publication under the direction of the court of the time and place of allowing the same. R. L. s. 2106. The record of the Probate Court shows that personal notice was ordered to be given to the heirs of Catherine Driscoll, if living within this State, of the time and place when and where the application for distribution would be heard, and that such notice was given, and that public notice was given by publication in the St. Albans Messenger. The notice thus shown to have been given was legally sufficient.

It was necessary that the court should find that the absent heir had been absent and unheard of for fifteen years, five of which were after the death of the intestate. That fact, and that notice had been given, it appears was found by the Probate Court.

It is claimed that these findings, and the recitals that appear in the record, are not conclusive. Probate courts in this State are courts of record; and judgments rendered by them upon matters -within their jurisdiction to determine, unappealed from, are conclusive. To give the court jurisdiction over the absent heir’s share in the estate, it was necessary, after proper notice given, that the fact of the absence of the heir for the time specified should be found by the court; so that the court in making such finding was discharging a duty imposed by the law, and its finding must be held to be ■conclusive. The court, then, having acquired jurisdiction over said share, the order made divested the heir of all legal claim to the estate, and vested the same in the defendants. Grice v. Randall, 23 Vt. 239; Stone v. Peasley's Est. 28 Vt. 716.

The defendants having elected to have the share of the heir distributed to them jointly, and having taken the title jointly, cannot now excuse themselves from joint liability.

It is also claimed that the defendants, having acquired their interest in the estate of Catherine Driscoll by purchase, before the passage of the law of 1870, their rights are not affected by that law. The answer to this claim is, that they acquired their title under the order of the Probate Court made after the passage of that law, and made in pursuance thereof; and the liability is imposed upon those “to whom such share has been distributed under such an order.”

The defendants cannot avail themselves, as a defence, of the fact that the intestate was an alien. She had the undoubted right to purchase and hold lands, and if forfeited on account of her alienage the forfeiture was to the State; and the State alone could assert a right to them. Gilman v. Thompson, 11 Vt. 643; Cross v. DeValle, 1 Wall. 5.

The title to the share to which Mary Lenehan would have been entitled having vested in the defendants, a right of action was given her against them to compel payment therefor; and the important question is, what shall that compensation he?

The language of the law is: “ He shall be entitled to his share of such estate, notwithstanding such distribution, and may recover in an action on the case for money had and received any portion thereof which any one received under such an order.” The County Court estimated that compensation to be the value of the share as it was ascertained at the time of distribution, and interest on the same from that date.

It will be observed that the time when the value of such share is to be estimated is not fixed by the law. The law in that respect is ambiguous; and in construing it we are to ascertain, if we can, what the design and intent of the framers was. It is evident to us that the intention in thus protecting the interests of absent heirs was to place them in as advantageous a position as they would have been in if the estate had not been distributed. If an executor or administrator, while he is administering upon an estate, expends money upon it which is necessary to its preservation and protection, and which it is for the interest of the estate to have expended, the expenditures become a charge upon the estate and the shares to which the heirs are entitled are proportionally diminished; so that if this estate had not been distributed, the share of Mary Lenehan would have been chargeable with its proportion of any such expenditures made upon it while it was being administered.

The adoption of the rule that the value of a share is its value as ascertained at the time of distribution, as an arbitrary one, and compelling distributees to pay upon that basis, would frequently result in great injustice. The property may be wholly lost, or it may depreciate largely in value without the fault of the distributee, after distribution made and before the absent heir appears and demands compensation. To compel the distributee to bear the loss under such circumstances would be inequitable and unjust. It is to be borne in mind that the defendants acquired the title and came into the possession of the share in controversy rightfully, and without knowledge that there was any opposing claim to it; and the expenditures they have made upon the property are presumed to have been made in good faith and in the belief that they had air indefeasible title.

If the share of the heir has appreciated in value he should be entitled to the benefit of such appreciation; if it has become ,less valuable, without the fault of the distributee, the loss in value should be borne by the heir. If rents and profits have been or might have been derived from the use of such share, the i heir is entitled to them. If necessary and proper expenditures have been made upon the property, the heir should be charged with his proportion of such expenditures in reduction of the amount which the distributees are compelled to pay him. Such a rule of accountability will effectuate what seems to us to be the spirit and intent of the law, and will work out just and equitable results.

It is evident that no proper judgment can be rendered upon the facts reported. The judgment is reversed; and cause remanded in order that it may be recommitted for specific findings, as to the amount, kind, and value of the repairs made upon the property by the defendants, and the necessity for making them, and as to any other expenditures made upon, or for the care and preservation of the property; and the amount that has been or might have been received by the defendants for the use of the same, and its value at the time this suit was brought.