Appeal of Abbott

• Decision Date: 09 January 1903
• Citation: Appeal of Abbott, 54 A. 755, 97 Me. 278 (Me. 1903)
• Parties: Appeal of ABBOTT.
• Court: Maine Supreme Court

54 A. 755

97 Me. 278

Appeal of ABBOTT.

Supreme Judicial Court of Maine.

Jan. 9, 1903.

(Official.)

Appeal from Supreme Judicial Court, Knox County.

In the matter of the estate of C. B. Abbott, deceased. Appeal of Alton C. Abbott from a decree granting an allowance to Hattie N. Abbott, widow of the deceased. Appellee excepted. Appeal dismissed.

Argued before WISWELL, C. J., and EMERY, STROUT, PEABODY, and SPEAR, JJ.

J. H. Montgomery, for appellant.

R. I. Thompson and E. K. Gould, for appellee.

PEABODY, J. This case is on exceptions by the appellee, Hattie N. Abbott, to the ruling pro forma of the presiding justice overruling two motions to dismiss the appellant's appeal from a decree of the judge of probate for the county of Knox, granting her an allowance as widow of Calvin B. Abbott, deceased.

1. The ground of the first motion is that the appeal recited that the appellant, Alton C. Abbott, appealed from said decree of the probate court "to the Supreme Judicial Court, being the Supreme Court of Probate, to be held at Rockland within and for the county of Knox on the 3d day of September, A. D. 1901" There is no term of said court held on the 3d day of September, but the term of said court at which the appeal, if valid, was cognizable was held on the third Tuesday of September.

2. The ground of the second motion for dismissal is that neither the appeal nor the reasons of appeal show any right of appeal on the part of the appellant, and that they are, therefore, insufficient in law.

We think it unnecessary to decide the technical point presented in the first motion. The appellee was in court, and seasonably made the second motion, and the conclusion we reach upon the question thereby raised is decisive of the case.

The statute provides, with reference to appeals from decrees of the probate court, as follows:

"Any person aggrieved by an order, sentence, decree or denial of such judge *** may appeal therefrom to the Supreme Court to be held within the county, if he claims his appeal within twenty days from the date of the proceeding appealed from." Rev. St. c. 63, § 23.

The right of appeal from any decree or order of the probate court is conferred by statute, and is, therefore, conditioned upon a compliance with all its requirements. Bartlett, Appellant, 82 Me. 210, 19 Atl. 170; Moore v. Phillips, 94 Me. 421, 47 Atl. 913; 2 Woerner's Am. Law of Adm. § 543.

No person has the right of appeal unless he has a pecuniary interest in the subject-matter of the decision or decree by which he claims to be aggrieved. This interest must be shown, or the appeal will be dismissed. Briard v. Goodale, 86 Me. 100, 29 Atl. 946, 41 Am. St. Rep. 526; Pettingill v. Pettingill, GO Me. 411; Deering v. Adams, 34 Me. 41; Norton's Appeal, 46 Conn. 527; Cecil v. Cecil, 19 Md. 72, 81 Am. Dec. 626; 2 Woerner's Am. Law of Adm. § 544.

In order to establish by proof, if denied, such interest as entitled him to appeal, it must be alleged in his petition or motion claiming an appeal. Zumwalt v. Zumwalt, 3 Mo. 269; Jenks v. Howland, 3 Gray, 536; Briard v. Goodale, 86 Me. 100, 29 Atl. 946, 41 Am. St. Rep. 526.

In Deming's Appeal, 34 Conn. 201, it is held that the interest of the appellant must either appear on the face of the proceedings in the probate court, or it must be averred in the notice of appeal.

In Veazie Bank v. Young, 53 Me. 555, Barrows, J., says: "it is the duty of every appellant from a decree of a probate judge, as the preliminary proceeding, to establish his interest in the subject-matter of the decree from which he claims an appeal."

The appellant has not, either in his reasons of appeal or notice, affirmatively alleged such facts as, if proved, would show that he is aggrieved within the meaning of the statute as construed by the decided cases. In his reasons of appeal he states that "any allowance is an injury to the balance of the estate," b...