Appeal of Eva

• Decision Date: 23 July 1918
• Citation: 93 Conn. 38,104 A. 238
• Parties: Appeal of EVA et al. In re EVA'S ESTATE.
• Court: Connecticut Supreme Court

104 A. 238

93 Conn. 38

Appeal of EVA et al. In re EVA'S ESTATE.^[*]

Supreme Court of Errors of Connecticut.

July 23, 1918

Appeal from Superior Court, Litchfield County; William M. Maltbie Judge.

Proceeding in the matter of the estate of John Eva, deceased, for the appointment of an administrator. From the decree rendered Richard Eva and others appeal. No error.

From the finding it appears that John Eva, for many years a resident of Bridgewater, in the probate district of New Milford, died intestate on December 17, 1916. He left an estate of about $12,000. This consisted of deposits in Connecticut savings banks. He left no lineal descendants surviving him. The deceased had two brothers William J. and Richard H. Eva. They died before the intestate. William J. left eight children, of which the appellant is one. These children all resided in the state of Michigan when the testator died. Richard H. Eva was married to Margaret Shannon on February 1, 1866, by Father John Orsenigo, at Croton Falls, N. Y., and one child, Annie Eliza was born of this marriage. On June 26, 1883, Dichard H. Eva married Mary R. Brown at Fredericksburg, Va. Three children were born of that union. Annie Eliza went to live with the deceased when she was 4 years of age, and lived with him most of the time until her marriage. For about 12 years, prior to his death, John Eva lived with Annie E. and her husband at Bridgewater, where he died. On December 21, 1916, Annie E made application to the court of probate for the district of New Milford requesting that John S. Addis, of New Milford, be appointed administrator of the estate of her uncle, John Eva. On June 10, 1917, the children of William J., including the appellant made application to the same court of probate for the appointment of Frank W. Marsh, of New Milford, as administrator of the estate of John Eva. Upon that application the court of probate issued an order of notice for a hearing. The finding does not disclose that this application was ever withdrawn. Subsequently the appellant, Richard Eva, made another application, praying that letters of administration be granted to him. On March 6, 1917, the court of probate heard these applications and found that the heirs failed to agree on the appointment of an administrator among themselves. The trial court also found that from the appearance and attitude toward each other as they appeared before the court on the hearing of the appeal and from the nature of the testimony offered, it was evident that there existed a strong personal feeling among those claiming to share in the estate. All the children of William J. Eva and the children of Mary R. Brown Eva still desire the appointment of Richard Eva as administrator, but object to the appointment of John S. Addis.

Richard Eva, the appellant, is a resident of the state of Michigan. For more than 15 years before the decease of John Eva, Richard Eva had not seen him, and knew nothing of his affairs. During this period he had not been in this state, except on two short visits, up to the time of the trial. He was for several years a fireman, and is now employed as a through freight engineer on the Michigan Central Railroad between Jackson and Detroit, Mich. He is a person of good appearance and intelligence, apparently about 35 years of age. He can procure a leave of absence from his employment at any time, and can obtain free transportation to and from Connecticut. John S. Addis, the appellee, is a disinterested person, familiar with the settlement of estates, residing in the town of New Milford and is a suitable person to act as administrator. Upon his appointment he duly gave bond, qualified, and entered upon his duties as administrator, and has since then been performing them.

From the reasons of appeal, on which the appellant tried his case in the court below, we ascertain that his contention then was that the deceased, John Eva, left no widow surviving him, and the appellants are all of the next of kin and the only heirs at law of the deceased; that none of the appellants have refused or are incapable to act as administrator of the estate of the deceased; and that Annie E. Gough is not an heir at law or one of the next of kin of the deceased.

Martin J. Cunningham, of Danbury, and Frank W. Marsh, of New Milford, for appellants.

Leonard J. Nickerson, of Cornwall, for appellee.

RORABACK, J.

Several reasons of appeal are based upon alleged errors in finding facts. These objections are without merit, as the record discloses that a motion was made to obtain a correction of the finding of the superior court, and it appears that the corrections asked for, so far as material, were made. Furthermore, the evidence is not before us, and, besides, there are no exceptions to finding, as required by sections 795 and 796 of the General Statutes. The motion is denied.

The appellant claims the right to administer upon the estate of the deceased by virtue of the provisions of section 318 of the General Statutes, which provides that:

" When any person shall die intestate, the court of probate, in the district in which the deceased last dwelt, shall grant administration of the estate to the husband or wife or next of kin, or to both, or, on their refusal or incapacity, or failure to give bond, or upon the objection of any heir or creditor to such appointment, found reasonable by said court, to any other person whom the court deems proper."

The question here presented is a narrow one. It appears that objection was made to the appointment of Richard Eva by Annie E. Gough, an heir at law and next of kin, which objection the trial court has found reasonable. It also appears that the court below has found it is for the best interest of the estate that a disinterested person should be appointed, and has also confirmed the appointment of Mr. Addis, which was made by the court of probate, so that the only question for us to decide is whether or not the action of the Superior Court was a reasonable exercise of the discretion resting in it.

The facts disclosed by the record fall far short of showing that it was the duty of the court of probate to appoint the appellant, Richard Eva, administrator. He and all those whom he represents were entire strangers to the situation that existed in Bridgewater when John Eva died. They knew but little of him, and nothing of his affairs at that time. Richard Eva's only qualification for his appointment was the fact that he is an heir at law and next of kin of John Eva. He is a railroad engineer, and presumably unacquainted with probate procedure under the laws of Connecticut. His calling is such that it is fair to assume that, in this critical period in the history of this country, his undivided time and attention are imperatively required at a place hundreds of miles away from the spot where he would frequently be called upon to act, if appointed administrator of the estate of John Eva. From the nature of this controversy it is apparent, as the trial court has found, that there are antagonisms and differences existing between the opposing parties now before us, which cannot be easily adjusted or reconciled.

In this connection we have not overlooked the fact that the legitimacy of Mrs. Gough has been questioned by an attempt to show that the marriage of her parents was invalid. Upon the other hand, it appears that John S. Addis, the appointee, is a resident of New Milford, a disinterested person familiar with the settlement of estates, and a proper person to act as administrator. The fact that Mrs. Gough has made application for the appointment of Mr. Addis should not militate against his suitability. It appears that Mrs. Gough is an heir at law and next of kin, and has a large interest in the estate of John Eva. It has also been shown that for many years of her life Mrs. Gough has lived with John Eva in Bridgewater. Upon the facts as they are presented by the record, the courts below were fully justified in finding that there was reasonable objection to the appointment of Richard to administer the affairs of this estate. It is almost unnecessary for us to add that we are of the opinion that the superior court acted reasonably and with due regard to the best interest of all concerned in conferring this appointment upon Mr. Addis.

As we have seen, Annie E. Gough claims to be an heir at law and next of kin of John Eva, the deceased. If that be so, her right to object to the appointment of the appellant, Richard Eva, cannot be denied. Whether her claim in this respect is well founded depends upon the validity of a marriage contract claimed to have taken place between her father and mother in 1866 at Croton Falls, in the state of New York. To prove that the father of Mrs. Gough, Richard H. Eva, was lawfully married to her mother, Margaret Shannon, the appellee offered in evidence a...