Opinion
Opinion filed November 25, 1941.
Power of Attorney. — 1. Motion to Dismiss Reaches Only Record. — 2. Appeal Bond, P.L. 3010. — 3. Dismissing Probate Appeal for Defective Bond. — 4. Probate Appeal Bond Must Be Sealed, P.L. 3010. — 5. Authority to Seal Bond. — 6. Lex Loci Contractus Determines Validity. — 7. Validity of Power of Attorney by Place Executed. — 8. Foreign Law Proven and Found as Fact. — 9. Italian Law Not Presumed to be Common Law. — 10. Presumption of Common Law. — 11. Validity of Power of Attorney Executed in Foreign Jurisdiction. — 12. Power of Attorney to Convey Land, P.L. 2587, 2600.
1. A motion to dismiss challenges only matters appearing of record and does not reach defects that require extrinsic proof.
2. The provisions of P.L. 3010 are mandatory and require filing of a satisfactory bond before allowance of a probate appeal.
3. A motion to dismiss a probate appeal must be granted if the records show that the required bond has not been filed.
4. The bond on probate appeal required by P.L. 3010 must be under seal.
5. The common law requires that authority to sign a sealed instrument must be given under seal.
6. Ordinarily the law of a place where a contract is made governs its validity, interpretation and construction.
7. The formalities requisite to creating a power of attorney are governed by the law of the place where the instrument is executed rather than the place where the act authorized is to be performed.
8. The law of a foreign country must be proven by evidence and found as a fact.
9. It can not be assumed that the common law prevails in the Kingdom of Italy.
10. The presumption of the existence of the common law extends only to those jurisdictions having a common origin with our own or populated by persons coming from jurisdictions having such common origin.
11. It is error to dismiss an appeal in probate upon the ground that the requisite probate bond executed by power of attorney was not proper because the power of attorney did not fulfill the requisites required here when the power of attorney of record purported to be executed in a foreign jurisdiction concerning whose laws as to such power of attorney extrinsic evidence was necessary.
12. The formalities of a power of attorney required to convey Vermont land or an estate or interest therein are governed by P.L. 2587 and P.L. 2600.
PROBATE APPEAL. Appellant moved in Probate Court for the District of Bennington to strike off and declare void "Decree on final accounting" in the Estate of Edward H. Everett. From denial she appealed to Bennington County Court where at June Term, 1940, the court, Hughes, J., presiding, granted motion of executrix and administrator, c.t.a., to dismiss the appeal. Appellant offered written proof of the law of Italy as to the sufficiency of power of attorney granted to her attorneys to sign the appeal bond. Offer was denied, appeal dismissed, appellant took exceptions. Other facts appear in the opinion. Reversed.
McNamara and Larrow for appellant.
Warren R. Austin and George P. Lemm for Grace Burnap Everett, Executrix, and Warren R. Austin, Administrator, c.t.a., of the will of Edward H. Everett, deceased, appellees.
Present: MOULTON, C.J., SHERBURNE, BUTTLES and STURTEVANT, JJ., and CUSHING, SUPR. J.
The appellant, Mary Everett Turri, is one of the heirs at law of Edward H. Everett, deceased, and a legatee named in his will. She appealed from an order of the Probate Court denying her petition to strike from the record and render void a previous decree approving the account of the executrix and the administrator c.t.a., but her appeal was dismissed on motion in the County Court, and the cause is here upon her exceptions.
The ground of the motion to dismiss is that the appellant has not given a satisfactory bond on appeal as required by P.L. 3010. The instrument as filed was signed and sealed in the name of the appellant as principal by Deane C. Davis and Joseph A. McNamara, her attorneys in fact, and Davis and McNamara also signed and sealed it as sureties in their individual capacities acknowledging themselves bound jointly and severally. Their claimed authority to execute a bond in the name of the appellant appears of record and is a power of attorney signed by the appellant in Florence, Italy, and acknowledged by her before a Vice Consul of the United States, but is without a seal.
A motion to dismiss challenges only what appears of record, and does not reach defects that require extrinsic proof to establish. Capital Savings Bank Trust Co. v. Hammett, 95 Vt. 47, 49, 112 A. 360; Stevens v. Bowker, 93 Vt. 480, 482, 108 A. 347; Tracy v. Grand Trunk Ry. Co., 76 Vt. 313, 318, 57 A. 104; Arel v. Centebar, 73 Vt. 238, 239, 50 A. 1064; Cunningham v. Caldbeck, 63 Vt. 91, 94, 20 A. 974; Johnson v. Williams, 48 Vt. 565, 569; Bliss, Admr. v. Smith et al., 42 Vt. 198, 199; Conn. Pass. Rivers R.R. Co. v. Bailey, 24 Vt. 465, 472, 58 Am. Dec. 181; Culver v. Balch, 23 Vt. 618, 620. P.L. 3010 provides that "Before an appeal is allowed, the person appealing shall give a satisfactory bond to the court, conditioned that he will prosecute the appeal to effect and pay the intervening damages and costs occasioned by such appeal." This statute is mandatory, and if the record shows that the required bond has not been given, a motion to dismiss the appeal must be granted. Lambert v. Merrill's Est., 56 Vt. 464, 466; Re Bodwell, 66 Vt. 231, 233, 28 A. 989; Arnold v. Waldo, Admr., 36 Vt. 204, 208.
In providing that a bond shall be given, the statute imports that the instrument must be under seal. Without a seal it can not have the qualities which attach to a bond. Denton Smith v. Adams, 6 Vt. 40, 42; Barnet v. Abbott, 53 Vt. 120, 129; Mahoney v. U.S. Shipping Board, etc., Corp., 253 Mass. 234, 148 N.E. 454, 455; In re Contest of Election of Burns, 315 Pa. 23, 171 A. 888, 890; City of Providence v. Goldenberg, 44 R.I. 327, 117 A. 225, 227. And according to the common law it is "the ancient but still vital principle that authority to sign a sealed instrument must be given under seal." Alfano v. Donnelly, 285 Mass. 554, 189 N.E. 610, 612.
However, the power of attorney here in issue was executed in the Kingdom of Italy. Nothing appearing to the contrary, the ordinary rule that the law of the place where a contract is made is to govern its validity, interpretation and construction, applies. Vermont Mutual Fire Insurance Co. v. Van Dyke, 105 Vt. 257, 259, 165 A. 906; 2 Beale, Conflict of Laws, Sec. 332.4. "So the formalities necessary in creating a power of attorney, as to the requirement of writing, seal, etc., are governed by the place of executing the power." 2 Beale, Conflict of Laws, Sec. 283.1. It is apparent, from the citations to this section, that the words "executing the power" refer to the execution of the instrument and not to the performance of the act authorized. To the same effect is Wharton, Conflict of Laws, (3rd. ed.) Sec. 676. And in the Restatement of the Conflict of Laws, Sec. 343, the rule is thus expressed; "whether an agreement between two or more persons constitutes an authorization by one person that another may perform an act on his behalf is determined by the law of the place where the agreement is made."
The validity of the power of attorney depends upon the law of Italy upon the subject, and what that law may be is a matter that must be shown by evidence, and found as a fact. It cannot be assumed that the common law prevails in that Kingdom, for it is only in those jurisdictions having a common origin with our own, or populated by those persons coming from jurisdictions having such common origin that the presumption of the existence of the common law therein obtains here. Peet v. Hatcher, 112 Ala. 514, 21 So. 711, 57 Am. St. Rep. 45, 48; Norris v. Harris, 15 Cal. 226, 252, 253. The defect in the record, upon which the motion to dismiss is predicated, is one which extrinsic evidence is required to establish. There was, therefore, error in granting the motion to dismiss.
It should be noted, in passing, that what we have said in no way relates to the statutory, or common law, requirements for an agent's authority to convey land or an estate or interest therein. (See P.L. 2587, 2600).
It is unnecessary to consider the other questions presented by the appellant.
Judgment reversed and cause remanded.