Desmond v. Persina

• Decision Date: 05 January 1978
• Citation: 381 A.2d 633
• Court: Maine Supreme Court
• Parties: John A. DESMOND v. Charles V. PERSINA, Jr., Adm'r Estate of Eleanor G. Wade and Helen Moisan, Gertrude Moisan, et al.

Page 633

381 A.2d 633

John A. DESMOND v. Charles V. PERSINA, Jr., Adm'r Estate of Eleanor G. Wade and Helen Moisan, Gertrude Moisan, et al.

Supreme Judicial Court of Maine.

Jan. 5, 1978.

Earle S. Tyler, Jr. (orally), Milbridge, for plaintiff.

David A. Nichols (orally), Camden, for Charles V. Persina, Jr.

Arthur E. Strout (orally), Rockland, Clifford F. O'Rourke, Camden, for Hermeana E. & Robert M. Graham, Margaret S. Troxel, George W. Windhorst, Jr. and Carleton Blunt.

Before DUFRESNE, C. J., and POMEROY, WERNICK and ARCHIBALD, JJ.

DUFRESNE, Active Retired Justice. ¹

Marie A. Wade, late of Northport, Maine, died testate on November 10, 1969. In her will executed at Belfast, Maine on March 17, 1944 she provided in pertinent part:

"First : I give, bequeath and devise to my beloved son, John Edward Wade, if he survive me, all of my estate, real, personal and mixed, wherever found and wherever situated, to have an to hold to him and his heirs and assigns forever.

"Second : In the event that my son does not survive me I give and bequeath whatever property that is standing in the name of my son and myself, jointly, at the time of my decease to the wife of my son, Mrs. Eleanor G. Wade, and all the rest, residue and remainder of my estate, I give and bequeath in equal shares to the following three persons, to my sister, Lucie M. Desmond, my niece, Gertrude Moisan and my niece, Helen Moisan, to have and to hold to them and their heirs and assigns, forever."

The son, John Edward Wade, predeceased his mother and left surviving him his wife, Eleanor G. Wade, who was also living at the death of her mother-in-law, Marie A. Wade. Eleanor died on May 2, 1970 intestate and the defendant, Charles V. Persina, Jr. (Persina), was appointed administrator of her estate on July 14, 1970. In the course of the administration of the estate of Eleanor G. Wade, Persina, so the complaint in the instant case discloses, in proceedings addressed to the Judge of the Probate Court in and for Waldo County, was licensed to sell the Northport real estate which had been conveyed prior to their deaths to Marie A. Wade and John E. Wade "as joint tenants and not as tenants in common, to them and the survivor of them and to his or her heirs and assigns forever." ² The transferees to whom Persina conveyed several parcels of the Northport property by administrator's deeds in 1971 and 1972 were made parties defendants to the present action.

On January 21, 1974 the plaintiff instituted the instant complaint in the capacity of administrator d. b. n. c. t. a. of the estate of Marie A. Wade, stating therein:

"A dispute now exists between the Plaintiff and the Defendants as to the ownership of premises described in deed recorded said deeds (sic) Book 436, Page 23 and until such dispute is settled Plaintiff cannot properly proceed to perform his duties as such Administrator."

He prays injunctive relief against the transferees to prevent further alienation of the properties, against Persina to enjoin distribution of the proceeds of sale and seeks a declaratory judgment whereby his rights, duties and legal relationships respecting the pertinent real estate may be determined in aid to his administration of the estate of Marie A. Wade.

The record indicates that, of the three residuary beneficiaries under the second clause of Marie A. Wade's will, only Helen Moisan was made a party defendant through service of summons. Lucie M. Desmond, the plaintiff's mother, was not made a party to the action, nor does the record show any type of service on "any person or persons unknown claiming by, through or under her (Gertrude Moisan)," whom the plaintiff described as deceased.

The defendants respectively moved to dismiss the complaint either by separate motion to dismiss or by inserting the same in the answer pursuant to Rule 12(b), M.R.Civ.P. They alleged, as the basis of dismissal, 1) that the complaint fails to state a claim upon which relief can be granted (Rule 12(b) (6)) and 2) that the plaintiff has no standing to seek the relief prayed for, because title to the real estate of Marie A. Wade passed directly to her devisee or devisees upon the probate of her will as of the date of her death.

The trial Justice granted the motion to dismiss, basing his decision on the ground that, since the correct interpretation of the second clause of Marie A. Wade's will obviously devised the Northport property to Eleanor G. Wade, the plaintiff had, as a matter of fact, no standing to claim any interest in the reference real estate in his capacity of administrator d. b. n. c. t. a. of the estate of Marie A. Wade, and thus his complaint failed to state a claim upon which relief can be granted. The plaintiff's appeal to this Court must be dismissed.

Standing of administrator d. b. n. c. t. a. to appeal

The record discloses that the plaintiff-appellant did not designate for inclusion in the record on appeal "the complete record (below) and all the proceedings . . . in the action," and, for that reason, he was obligated, pursuant to Rule 74(d), M.R.Civ.P., to serve with his designation of contents on appeal a concise statement of the points on which he intended to rely, any point not so stated being deemed waived. ³ The statement of points on appeal actually filed reads as follows:

"The points on which plaintiff-appellant will rely on appeal are:

1. Since the deceased's son predeceased her, there was no property standing in the name of the deceased and her son jointly at the time of the deceased (sic) death and therefore there can be no gift to Eleanor G. Wade under paragraph 'Second' of the deceased's will."

The Law Court, except for questions of jurisdiction, is not bound to travel outside the scope of the points on appeal and will consider only the errors specifically assigned for review. See In re Noonday Club of Delaware County, Inc., 433 Pa. 458, 252 A.2d 568 (1968); Charlton Press, Inc. v. Sullivan, 153 Conn. 103, 214 A.2d 354 (1965); Bishop v. Board of County Commissioners, 230 Md. 494, 187 A.2d 851 (1963); Moses v. Wilkinson, 90 R.I. 253, 157 A.2d 478 (1960); 5 C.J.S. Appeal & Error § 1218, page 37, note 98, and cases cited.

From his very points of appeal it appears that the plaintiff-appellant seeks review of the adjudication in the Superior Court underlying the granting of the motion to dismiss, whereby the presiding Justice ruled that title to the Northport property passed to Eleanor G. Wade, the widow of Marie A. Wade's son, John E. Wade.

We are faced, initially, with the question, whether the plaintiff-appellant has standing in his capacity of administrator d. b. n. c. t. a. of the estate of Marie A. Wade to bring this appeal and have a determination respecting the proper construction of the second clause of Marie A. Wade's will. We answer in the negative.

Section 1851 of Title 14 provides that "(i)n any civil case any party aggrieved by any judgment, ruling or order (of the Superior Court) may appeal therefrom to the law court within 30 days or such further time as may be granted by the court pursuant to a rule of court." Hence, an appeal cannot be presented by a party not aggrieved, any more than it could be by a stranger to the record. Perkins v. Kavanaugh, 135 Me. 344, 345, 196 A. 645 (1938). This requirement applies to any order, judgment or decree rendered pursuant to our Declaratory Judgments Act (14 M.R.S.A., §§ 5951-5963), under which the plaintiff-appellant purportedly brought his complaint in the instant case. See 14 M.R.S.A., § 5959. ⁴

For the plaintiff-appellant to be a party aggrieved by the specific ruling of the presiding Justice of which he presently complains in this appeal, it must appear that the Court's ruling, order or judgment operates prejudicially and directly upon his property, or his pecuniary or personal rights. Jamison v. Shepard, Me., 270 A.2d 861 (1970).

The legal title to devised real estate vests in the devisees, when the will becomes operative, that is, after it has been proved and allowed by the court having jurisdiction for that purpose, i. e. the probate court or, if an appeal is properly perfected or allowed, the supreme court of probate. See Cousens v. Advent Church, 93 Me. 292, 45 A. 43 (1899); Martin, Appellant, 133 Me. 422, 179 A. 655 (1935). The title of the devisees, following the legal establishment of the will, relates back to the time of the death of the testate decedent. Gray v. Hutchins, 150 Me. 96, 101, 104 A.2d 423 (1954); Wright v. Williamson, 67 Me. 524 (1877); Spring v. Parkman,12 Me. 127 (1835). In the instant case, title to the Northport property vested as of the time of death of Marie A. Wade on November 10, 1969 in either the specific devisee, Eleanor G. Wade, or the residuary devisees, Lucie M. Desmond, Gertrude Moisan and Helen Moisan, depending on the legal construction to be given to the second clause of Marie A. Wade's will. But under no circumstances did the title vest in the plaintiff-appellant in his capacity of administrator d. b. n. c. t. a. of the estate of Marie A. Wade. See Brown and Appleton v. Strickland, 32 Me. 174 (1850). An administrator, as such, is not interested in the real estate of the deceased in an intestate estate; it is the heir who has a vested interest therein. In a testate estate, an executor or administrator c. t. a., as such, also has no interest in the real estate of the decedent; it is the devisees that do. Berry v. Whitaker, 58 Me. 422, 424 (1870).

In Webb v. Dow, 120 Me. 519, 115 A. 279 (1921), an executor attempted to appeal from a Superior Court decree which had construed his testatrix' will in favor of one devisee over another. In determining whether the executor could properly prosecute an appeal, this Court reasoned that the appellant's rights and duties in the discharge of the duties of his office as executor in relation to the estate of his testatrix were not affected in any manner by the Superior Court decree. The Court viewed the executor as duty...