In re Trust Estate of Flynn

 NOTICE:  This opinion is subject to motions for reargument under V.R.A.P. 40
 as well as formal revision before publication in the Vermont Reports.
 Readers are requested to notify the Reporter of Decisions, Vermont Supreme
 Court, 111 State Street, Montpelier, Vermont 05602 of any errors in order
 that corrections may be made before this opinion goes to press.


                                 No. 91-129


 In re Trust Estate of John J. Flynn          Supreme Court

 (Patrick Robins, Katherine Pond,             On Appeal from
 John J. Boylan, Jr. and Kathleen             Chittenden Superior Court
 C. Boylan, Appellants)
                                              February Term, 1992


 Frank G. Mahady, J.


 John J. Boylan, Burlington, for appellants Boylan

 Gerald R. Tarrant, Montpelier, for appellants Robins and Pond

 Clarke A. Gravel and Dennis R. Pearson of Gravel and Shea, Burlington, for
   Appellee Fanny Allen Hospital

 Spencer R. Knapp of Dinse, Erdmann & Clapp and John W. O'Donnell,
   Burlington, for appellee Medical Center Hospital

 Paul D. Sheehey of Sheehey, Brue, Gray & Furlong, Burlington, for appellee
   Vermont Catholic Charities

 Carl H. Lisman of Lisman & Lisman, Burlington, for appellee Chittenden Trust
   Company



 PRESENT:  Gibson, Dooley and Johnson, JJ., and Peck, J. (Ret.), Specially
           Assigned



      GIBSON, J.   Appellants, who lease summer cottage sites from the trust
 estate of John J. Flynn, seek review of the superior court's decision to
 vacate orders of the probate court, which had allowed appellants to
 intervene in a proceeding brought by the trustee of the estate to amend
 another trust estate lease, and which required the appointment of two new
 trustees to replace the existing trustee.  Appellants argue that the
 superior court erred (1) by assuming jurisdiction of the appeal from the
 probate court, (2) by ruling that appellants did not have a sufficient legal
 interest to justify their intervention in the probate proceeding, and (3)
 even if it had jurisdiction, by failing to conduct a de novo hearing on all
 issues raised by the appeal.  We reverse and remand the case to the superior
 court for a further hearing on the trustee's appeal from the probate court
 and for review of the appointment of new trustees.
                                     I.
      In 1989, the Chittenden Trust Company, trustee of the Flynn estate,
 sought (1) a declaratory ruling that the grantor's will permitted the
 trustee to enter into perpetually renewing leases of certain estate lands,
 and (2) a license to amend an existing lease by extending its duration to
 perpetually renewing 92-year terms.  The probate court allowed appellants to
 intervene pursuant to V.R.P.P. 24(b)(2), and then denied the trustee's
 motion for a license to amend the lease.  Approximately eight months later,
 in response to appellants' motion, the probate court ordered the appointment
 of two new trustees and the removal of the Chittenden Trust Company as
 trustee upon the appointment of the new trustees.  The Chittenden Trust
 Company and the beneficiaries of the estate sought de novo review of the
 probate court orders in superior court, which ruled that it had jurisdiction
 over the matter, and that the probate court had abused its discretion by
 allowing appellants to intervene.  Rather than rule on other issues raised
 by the appeal, the superior court vacated the probate orders and remanded
 the case for the probate court to reconsider the trustee's petition in light
 of the superior court's decision to deny party status to appellants.  The
 summer camp tenants now seek review of that order.
                                     II.
      Appellants argue that the superior court did not have jurisdiction to
 consider the issues raised by appellees because appellees were not "injured"
 by the probate court orders, and because the issues raised before the
 superior court were strictly legal issues over which the Vermont Supreme
 Court has exclusive jurisdiction.  See 12 V.S.A. { 2551 ("supreme court
 shall have jurisdiction of questions of law arising in the course of the
 proceedings of the county and probate courts in probate matters"); but cf.
 id. { 2553 ("county court shall have appellate jurisdiction of matters
 originally within the jurisdiction of the probate court"); id. { 2555
 ("person interested in an order, sentence, decree or denial of a probate
 court, who considers himself injured thereby, may appeal therefrom to the
 county court").
      The first component of this argument requires little discussion.
 Persons entitled to appeal an order of the probate court must have some
 legal interest that may be enlarged or diminished by the court's order.
 Lyons v. Field, 106 Vt. 474, 477, 175 A. 11, 12 (1934).  There is no doubt
 that the trustee and the beneficiaries in this matter have legal interests
 that may be enlarged or diminished by orders removing the trustee and
 denying a petition brought by the trustee that arguably could increase the
 estate's assets.  See In re Estate of Bove, 127 Vt. 25, 26, 238 A.2d 789,
 790 (1968) (beneficiaries of testator's will were "persons interested" in
 probate court order restricting fees recoverable by executor and his
 attorney); In re Bellow's Estate, 60 Vt. 224, 227, 14 A. 697, 699 (1887)
 (executor of estate had right to appeal probate court order removing him);
 State v. McKown, 21 Vt. 503, 507 (1849) (guardian could appeal from order of
 probate court removing him as an unsuitable person to discharge the duties
 of the trust).
      As for the superior court's jurisdiction over probate matters, the
 parties concede that mixed questions of law and fact that arise out of
 probate proceedings may be brought before the superior court.  We conclude
 that jurisdiction was properly before the superior court because resolution
 of some of the questions presented to the court requires an analysis of the
 factual record.  A "'question of law is one capable of accurate resolution
 by an appellate court without the benefit of a factual record.'"  State v.
 Lafayette, 148 Vt. 288, 290, 532 A.2d 560, 561 (1987) (quoting In re Pyramid
 Co., 141 Vt. 294, 304, 449 A.2d 915, 920 (1982)); see Hance v. Zant, 696 F.2d 940, 947 (11th Cir. 1983) (mixed questions of law and fact concern the
 application of legal principles to the historical facts of that case).
      Among other things, the superior court was asked to determine whether
 certain provisions of a proposed lease violated specific articles of the
 will, and whether the will required that two individual trustees administer
 the trust created by the will.  In order to make these determinations, the
 court might have to look outside ambiguous will provisions to ascertain the
 intent of the testator, which necessarily would have been in dispute.  The
 court was also asked to determine whether, in the absence of danger to the
 assets of the trust, removal of the trustee was warranted.  Although appel-
 lants do not appear to challenge the probate court's conclusion concerning
 the status of the estate's assets, the superior court might have to consider
 whether the assets indeed were secure.  Accordingly, we conclude that the
 superior court had jurisdiction to consider the questions presented on
 appeal from the probate court. (FN1)
                                    III.
      Next, appellants argue that the superior court erred by ruling that the
 probate court had abused its discretion in allowing them to intervene in the
 case.  At the outset, we note that while the superior court sits "as a
 higher probate court," with the power to try anew matters presented before
 the probate court, the superior court may also review claims of error
 committed by the probate court.  See In re Estate of Collette, 122 Vt. 231,
 234, 167 A.2d 361, 363 (1961) (superior court does not sit "merely" to
 revise errors of the probate court); Whitton v. Scott, 120 Vt. 452, 458-59,
 144 A.2d 706, 710 (1958) (superior court not "limited to" determining if the
 probate court erred).
      Here, the superior court concluded that appellants' status as tenants
 of the estate did not create a sufficient legal interest to allow them to
 seek removal of the trustee or to challenge the trustee's application to
 amend a separate lease of the estate.  We agree that the probate court
 abused its discretion in allowing appellants to intervene.
      The probate court may allow a person to intervene if the person "has a
 legal interest, the protection of which involves a question of law or fact
 in common with the probate proceeding." (FN2) V.R.P.P. 24(b)(2).  The instant
 probate proceeding initially concerned the trustee's desire to lease, in
 perpetuity, estate lands adjoining the property leased to appellants.
 According to appellants, they challenged the application, and later sought
 removal of the trustee, to protect their future rights to continue leasing
 from the estate and to prevent an anticipated adverse effect of future
 development on their existing rights.  Appellants' leases expire in 1994 or
 1995, and development of the adjoining estate property has not yet begun.
      With respect to appellants' future rights to continue leasing from the
 estate, we fail to see how their speculation as to whether the trustee will
 renew their leases creates a viable legal interest at this time in either
 who administers the estate or what type of lease governs adjoining estate
 lands.  If it turns out that the trustee does not renew appellants' leases,
 appellants may decide to challenge the nonrenewal at that time.  Moreover,
 we do not believe that the planned development, even if it does prove to
 have an impact on appellants' interests in their leaseholds, gives them the
 right to intervene in the trustee's petition, which concerns the estate's
 administration of property apart from that leased to appellants.  If their
 leases are renewed and some future development adversely restricts their
 property rights, they may wish to challenge that development in another
 court having subject matter jurisdiction.  Appellants have failed to show,
 however, that the trustee's petition to the probate court raises issues that
 affect their current leasehold interests.  Accordingly, we shall not disturb
 the superior court's ruling denying them the right to intervene in this
 matter.
                                     IV.
      Finally, appellants argue that the superior court erred by failing to
 hold a de novo hearing and rule on the trustee's application for a license
 to amend the lease.  We agree that the superior court should have considered
 the application.  While we understand that the superior court may have
 wanted the probate court to reconsider the application in the absence of
 appellants' participation, we believe that the superior court should, never-
 theless, have considered the petition.
      This situation differs from that in In re Maple Tree Place, ___ Vt.
 ___, 594 A.2d 404 (1991), where we allowed the superior court to remand a de
 novo appeal to the planning commission for presentation of additional
 evidence.  In that case, our decision was based, in part, on the fact that
 the planning commission had not had a full opportunity to consider all the
 evidence, that the commission's interpretation of an ordinance might be
 determinative, and that it was "entirely possible" that upon receiving the
 new information the commission would reopen the proceeding and reverse its
 earlier decision.  Id. at ___, 594 A.2d  at 407-08.  Here, on the other
 hand, the probate court had received, if anything, more information than
 would have been presented without the participation of appellants, and its
 decision, although conceivably influenced by, did not expressly rely on,
 appellants' interests.  In light of these facts and its de novo jurisdic-
 tion, the superior court should have held a hearing and made an independent
 decision on the trustee's petition.
      Moreover, the superior court must address whether the current trustee
 should be replaced, because, although the issue was raised by appellants
 who were later excluded from the case, the probate court had independent
 authority to rule on the question, and indeed did rule that retaining the
 trustee would violate the trust.  See 14 V.S.A. { 2314(a) ("when, for any
 cause, the interests of the trust estate require it, . . . the probate court
 may remove the trustee").
      The superior court's decision remanding the case to probate court for
 hearing is reversed; the case is remanded for a hearing on the merits
 before the superior court and for review of the decision requiring the
 appointment of new trustees.  The ruling denying appellants the right to
 intervene in this matter is affirmed.


                                         FOR THE COURT:



                                         ______________________________
                                         Associate Justice






FN1.       We recognize that in recent years this Court has permitted a number
 of appeals directly from probate that involved mixed questions of law and
 fact.  See, e.g., In re Estate of Neil, 152 Vt. 124, 565 A.2d 1309 (1989);
 In re Fletcher, 144 Vt. 419, 479 A.2d 134 (1984).  Our decision today does
 not concern the scope of this Court's jurisdiction over probate matters; we
 merely refute appellants' argument that the appeal involves only "pure"
 questions of law and the superior court thus lacked jurisdiction to consider
 the matter.

FN2.       We reject appellants' argument that they had a right of intervention
 pursuant to V.R.P.P. 24(a), which grants party status "(1) When a statute
 confers an unconditional right to intervene; or (2) The moving party is an
 interested party under Rule 17 but did not receive personal notice of the
 proceeding."  Regarding the first criterion of Rule 24(a), 14 V.S.A. {
 204(a) does not confer an unconditional right to intervene.  It provides
 that, "[w]henever used in this title, 'interested person' includes . . . any
 others having a property right in . . . a trust estate . . . which may be
 affected by the proceeding."  (Emphasis added.)  Assuming, arguendo, that
 this language gives appellants a potential right of intervention, appellants
 do not point to any provision within Title 14 that governs the instant
 proceeding and includes the term "interested party."  Further, { 204(a)
 provides that the meaning of the term "as it relates to particular persons
 may vary from time to time and shall be determined by the rules of probate
 procedure."  None of the relevant definitions of "interested persons" found
 in V.R.P.P. 17 explicitly include persons in appellants' position.  Thus,
 neither of the criteria provided in V.R.A.P. 24(a) is satisfied.