Opinion
No. 84-205
Opinion Filed October 4, 1985
1. Wills and Probate — License to Sell Real Property — Mandamus
Where executrix petitioned probate court for license to sell real property pursuant to power conferred by testator's will, and probate court stayed decision on petition pending appellant's appeal of probate court's decision to disallow her claim against estate, which stay was not final appealable order, petition by executrix to superior court for writ of mandamus directing probate judge to issue license was appropriate avenue of relief.
2. Wills and Probate — License to Sell Real Estate — Mandamus
Where power of sale is conferred by will and exception is made for dwelling house inhabited by surviving spouse or heir, petition for license to sell real estate should be granted; since this is purely ministerial act, in no way dependent on status of claims against estate, superior court properly issued order of mandamus directing probate judge to issue license.
Appeal by defendant from grant of writ of mandamus directing judge of probate court to issue license to executrix to sell real estate. Orleans Superior Court, Martin, J., presiding. Affirmed.
Theriault Joslin, P.C., Montpelier, for Plaintiff-Appellee.
Vincent Illuzzi, Orleans, for Defendant-Appellant Pauline Knott.
Present: Allen, C.J., Hill, Peck, Gibson and Hayes, JJ.
On January 12, 1983, the executrix of Clyde Knott's estate, Barbara K. Segerstrom, petitioned the Orleans Probate Court for a license to sell real property, such power being expressly conferred by the testator's will. 14 V.S.A. § 1653(b). In her petition, the executrix excepted the dwelling house wherein appellant resided as is required by statute. The probate court stayed decision on the petition pending the appellant's appeal of the probate court's decision to disallow her claim against the estate. The executrix then filed for a writ of mandamus in the superior court directing the judge of the probate court to issue the license. Appellant claimed that the probate court's stay was a final order and that the executrix's sole remedy lay in an appeal. In the alternative, appellant argued that the act of issuing a license was not subject to mandamus. The superior court found for the executrix. We affirm.
First, we note that mandamus was an appropriate avenue of relief. The matter before the probate court, the petition for a license to sell real estate, was not finally disposed of, In re Estate of Seward, 139 Vt. 623, 433 A.2d 274 (1981), and the stay which issued was not a final appealable order. It was, in essence, a decision not to decide.
Second, where a power of sale is conferred by will and exception is made for a dwelling house inhabited by the surviving spouse or an heir, a petition for a license to sell real estate should be granted. This is purely a ministerial act, in no way dependent on the status of claims against the estate. Thus, the order of mandamus was properly issued.
Affirmed.