Opinion Filed June 2, 1981
1. Appeal and Error — Probate Appeals
An interested party may only take an appeal from the probate court if the order appealed from is final as to the subject matter before the court. 12 V.S.A. § 2555.
2. Appeal and Error — Probate Appeals
An order admitting a will to probate is generally considered to be an appealable final order. 12 V.S.A. § 2555.
3. Appeal and Error — Probate Appeals
Superior court erred in dismissing appeal of contestants from order of probate court allowing contested will on the ground of lack of a final judgment. 12 V.S.A. § 2555.
4. Appeal and Error — Notice of Appeal — Necessary Inclusions
Where notice of appeal of order of probate court allowing will stated only that the will should not have been allowed and that, instead, a prior will of testator should have been allowed, notice of appeal did not sufficiently comply with rule providing that record on appeal contain a statement of questions which the appellant desired to have determined and superior court was without error in dismissing appeal on that basis. V.R.C.P. 72(c).
5. Appeal and Error — Preservation of Questions — Failure To Brief
Even if dismissal of appeal from probate court for noncompliance with rule governing record on appeal was incorrect, error was waived on appeal to supreme court by appellant's failure to brief the issue.
Appeal from order dismissing appeal from probate court in will contest. Rutland Superior Court, Martin, J., presiding. Affirmed.
John J. Welch, Jr., Rutland, for Appellants.
Bartley J. Costello and S. Stacey Chapman of Webber and Costello, Rutland, for Defendant.
Present: Barney, C.J., Larrow, Billings, Hill and Underwood, JJ.
This is an appeal by Ralph and Helen Seward (contestants) from the allowance of the will of Charles R. Seward.
The testator died on April 3, 1978, and the named executor presented to the Rutland Probate Court a will dated July 8, 1974. The contestants appeared and contested the will on the asserted ground that the will was executed while the testator was under guardianship. The contestants sought to have a will dated November 12, 1973, admitted to probate, in which the contestants were legatees. After hearings, the probate court allowed the 1974 will. The contestants appealed to the Rutland Superior Court in accordance with 12 V.S.A. § 2555. The executrix moved to dismiss the appeal on the ground that there was no final judgment, and after hearing, the trial court dismissed the appeal on the ground that the order allowing the 1974 will was not a final order, and that the contestants' notice of appeal did not contain a statement of the questions to be considered on appeal as required by V.R.C.P. 72(c). The contestants appeal this dismissal.
12 V.S.A. § 2555 provides as follows:
Except as otherwise provided, a person interested in an order, sentence, decree or denial of a probate court, who considers himself injured thereby, may appeal therefrom to the [superior] court.
Under our case law, an interested party may only take an appeal from the probate court if the order appealed from is final as to the subject matter before the court. In re Estate of Wells, 133 Vt. 159, 160, 333 A.2d 101 (1975); In re Estate of Webster, 117 Vt. 550, 553, 96 A.2d 816 (1953). An order admitting a will to probate is generally considered to be an appealable final order. See, e.g., Smith v. Chism, 262 Ala. 417, 79 So.2d 45 (1955); In re Burnett's Estate, 11 Cal.2d 259, 79 P.2d 89 (1938); Krick v. Farmers Merchants Bank, 151 Ind. App. 7, 279 N.E.2d 254 (1972); In re Estate of Pennington, 154 Kan. 531, 119 P.2d 488 (1941). The trial court was in error in dismissing the probate appeal on the ground of the lack of a final judgment, but this error does not require reversal.
V.R.C.P. 72(c) provides that the record on appeal shall contain "a statement of the questions which the appellant desires to have determined," and that within the time provided, "the appellant shall file his statement of questions." V.R.C.P. 72(d) provides that "[t]he questions contained in the appellant's statement of questions shall be tried to a jury if one is demanded . . . . Otherwise such questions shall be tried to the court." In the case at hand, the contestants' notice of appeal did not contain such a statement of questions, but only stated that "the will should not have been allowed and that rather, instead, a prior will of Charles R. Seward should be allowed." This is insufficient to comply with the rule, and the trial court was without error in dismissing the appeal on this basis.
In addition, even if the dismissal for noncompliance with V.R.C.P. 72(c) was incorrect, that error has been waived on the appeal to this Court by the appellants' failure to brief the issue. Pine Haven North Shore Association v. Nesti, 138 Vt. 381, 385, 416 A.2d 147 (1980); In re Smith, Bell Hauck Real Estate, Inc., 132 Vt. 295, 300, 318 A.2d 183 (1974).