¶1dissenting. What was feared — that an ancient rule stripped of its purpose over time would visit misfortune upon a hapless litigant— was avoided in Estate of Ladd v. Estate of Ladd, 161 Vt. 270, 640 A.2d 29 (1994), by resort to the law of contracts. Here, the divorcing parties contested the division of their marital property, and the family court decided the issue. Why the law of contracts saved the day in Ladd and some analogous doctrine of common sense does not save the day here is as senseless as the ancient rule invoked in the first place. Id. at 279, 640 A.2d at 34 (Morse, J., dissenting).
¶2It seems to me that the trial court’s judgment dividing property in a divorce has as much power to dispel the black magic created when death precedes the running of the nisi period as a stipulation dividing the property. Neither party appealed after the issuance of the trial court’s final order. The Court in this case does not even address why there is a meaningful distinction between a stipulation of the parties and an acceptance of the court’s final order by failing to appeal.
¶3The Court, I presume, trusts that the legislature will repeal this odious effect of the nisi decree upon the assumption that the legislature created it. What the Court ignores, however, is that the unfortunate gloss was not the legislature’s, but the Court’s. Id. at 272-73, 640 A.2d at 30-31 (discussing the origin of the problem, In re Hanrahan’s Will, 109 Vt. 108, 128, 194 A. 471, 481 (1937)). Since this Court created the problem, the Court should fix it.
¶4I would reverse. Justice Johnson joins in this dissent.