Maughan v. Estate of Burns , 64 Vt. 316 ( 1892 )

The opinion of the court was delivered by

ROWELL, J.

This is an appeal from the decision and report of the commissioners on the estate of Michael Burns. Plaintiff presented her claim to the commissioners at $2,789.65. The ad damvrmm in her declaration filed in the Probate Court was $3,500. In the County Court she recovered $3,813.49. Thereupon she moved for leave to amend her declaration by raising the ad damnum to $4,000, which was granted, and she had judgment for the amount of her recovery.

The identical claim presented to the commissioners was the claim tried above. The amount of plaintiff’s recovery rested on the quantum meruit. The jury found that she merited more than she estimated her claim when she presented it to the commissioners. But such underestimate did not preclude her from recovering more if the testimony showed her entitled to it, as presumably it did, as more was found. The fact of such estimate was evidence against her deserving more, as it was an implied admission that what she claimed was enough; but the admission was'not conclusive upon her, and did not prevent her from'recovering more. Rooney v. Minor, 56 Vt. 527; Stowe v. Bishop, 58 Vt. 498; Hard v. Button, 62 Vt. 314.

It is conceded that in common-law actions the court has power to raise the ad damnum at any time; but it is claimed that as the Probate Court is not a common-law court, but is a court of special and limited jurisdiction, and has by statute original jurisdiction of the settlement of the estates of deceased persons, the County Court has no power to raise the ad damnum of the declaration filed in the Probate Court.

The County Court has, by statute, appellate jurisdiction of matters originally within the jurisdiction of the Probate Court; and in such appeals it sits as a Higher Court of Probate, and its jurisdiction is coextensive with that of the Probate Court. It is not limited to the particular questions that -arose" in the Probate. Court in'the matter appealed, but is expressly extended to- matters originally within the jurisdiction of that court. It 'is an appellate court for 'the re-hearing and the re-examination of matters, not particular questions merely, that have been acted upon in the court below. Adams v. Adams, 21 Vt. 162. And these matters embrace even those thatrestin discretion. Holmes v. Holmes, 26 Vt. 536. In Francis v. Lathrope, 2 Tyler, 372. the claimant was allowed on terms to file a declaration in the pounty Court, he having, omitted to file one in the Probate Court as required by statute. It was within the - jurisdiction of the Probate Court to have allowed this amendment, and as the Coxmty Court had all the jurisdiction of the Probate Court in this behalf, it also had power to allow the amendment.

The record shows no error in permitting witnesses to testify to the rental value of the house and garden and to what it was worth to board and care for the intestate. That a witness may testify his opinion in respect of such matters, provided he has the requisite knowledge to make him competent, is too well settled in this State to admit of question. But, as this court has said before and here repeats, there is no rule of law defining the amount of knowledge the witness must possess in order to make him competent, though he must possess sufficient to enable him to form some estimate of the value and the worth, but whether he does possess sufficient or not is a preliminary question for the tribunal before'which he is called, and its decision is conclusive, unless it appears from the 'evidence to have been erroneous or founded on an error in law. Railroad C. v. Bixby, 57 Vt. 548.

Testimony to the value of the use of the household furniture, if such value was not involved in the case, was harmless to the defendant, as its only tendency was to lessen the amount of plaintiff’s recovery.

Nor was there error in that part of the charge to "which exception was taken. It is claimed that it was misleading in that it gave the jury to understand that it-was the duty of the guardian to'take his ward away from his own home in order to enable the guardian to provide for him, and that he was derelict in that duty. But the charge is not criticisable in this respect. It fairly gave the jury' to understand that the guardian had the right to assume the care and support of his ward and to provide for him in the ward’s home as well as elsewhere, if he desired to do so.

We think the case shows a state of facts that enabled the ward to contract for his own support. Stannard v. Burns, 63 Vt. 244.

Jibdgment affirmed and to be certified.