Appeal of Farnum

• Decision Date: 13 February 1911
• Parties: Appeal of FARNUM. In re LETGHTON'S ESTATE.
• Court: Maine Supreme Court

78 A. 901

107 Me. 488

Appeal of FARNUM.

In re LETGHTON'S ESTATE.

Supreme Judicial Court of Maine.

Feb. 13, 1911.

Exceptions from Supreme Judicial Court, Cumberland County.

In the matter of Mary M. Leighton's Estate. From a ruling of the Supreme Court of Probate on appeal from an order dismissing S. Merritt Farnum's petition for an allowance under Rev. St. c. 69, § 8, petitioner and the adverse parties bring exceptions. Exceptions overruled.

Argued before EMERY, C. J., and SAVAGE, SPEAR, CORNISH, and KING, JJ.

Oakes, Pulsifer & Ludden, for appellant.

Howard & A. B. Davies, for appellee.

KING, J. Proceedings were instituted in the probate court for Cumberland county, Me., under the provisions of Rev. St. c. 69, § 4 et seq., for the appointment of a guardian to Mary M. Leighton. There was no appearance, and consequently no contest over the proceedings ill the probate court, and a guardian was appointed as applied for, but from that decree an appeal was taken in behalf of the ward to the Supreme Court of probate where, after hearing, the decree of the probate court was affirmed. Thereafter, the following petition was presented to the judge of the probate court:

"In the Estate of Mary M. Leighton.

"Respectfully represents, S. Merritt Farnum, of Auburn, Maine, that he was employed as an attorney at law by Mary M. Leighton, ward, to defend her in connection with the guardianship proceedings instituted against her, and that the annexed account includes a true and just statement of the cash expenses incurred by him, and that he believes the amount therein charged for services to be reasonable and proper. Wherefore, he prays that the said annexed account may he allowed, and that the court will order the same to be paid by the guardian from the estate of said ward, as the first charge upon the estate."

The petition was bought under chapter 69, § 8, Rev. St., which reads as follows: "When a guardian is thus appointed, the judge shall make an allowance, to be paid by the guardian from the ward's estate, for all his reasonable expenses in defending himself against complaint."

After hearing, the judge of probate decided adversely to the petition and indorsed thereon, "Petition dismissed." From that decision the petitioner took an appeal to the Supreme Court of Probate, assigning three reasons of appeal. In the appellate court the guardian filed a motion to dismiss the appeal because the reasons of appeal were insufficient. The presiding justice ruled that the first and second reasons of appeal were insufficient, but that the third reason was sufficient, and overruled the motion to dismiss. Both parties excepted to that ruling.

1. Appellants' exceptions:

It is well settled that exceptions will not be sustained when it appears that the excepting party was not injured or prejudiced by the ruling complained of. State v. Bennett, 75 Me. 590. The only effective ruling of the court in this case was in favor of the appellant. His appeal was not dismissed. It is still pending in the appellate court as if no motion to dismiss it had been made. The appellant has not been injured by the ruling. His exceptions must, therefore, be overruled.

2. Appellee's exceptions:

The third reason of appeal, which the presiding justice held sufficient, was "because the said ruling of court was contrary to law and the facts." The appellee contends that this reason of appeal "is so incomprehensive and vague that no proper cause of appeal is presented therein, entirely failing as it does to inform interested parties as to what issue is involved in the appeal."

In his appeal proper, preceding the reasons of appeal, the appellant sets out with clearness and precision the matter of his petition before the probate court, and the decision of the court thereon, and states that he is aggrieved by the decree of the court whereby his petition "was dismissed." We think the third reason of appeal is not vague, but sufficiently comprehensive under the circumstances.

The decree appealed from "dismissed" the petition, thereby denying the petitioner's entire claim. He appealed from that decree because it "was contrary to law and the facts." What more should, or could, he have said to inform interested parties of the issue involved in his appeal? It was not incumbent upon him to state the evidence which he presented to the court below. But he does say in this reason of appeal, in effect, that his claim was established below, both in law and in fact, and therefore that the decree denying it was erroneous. The matter is to be heard de novo in the appellate court. He will not be limited there to the evidence produced in the probate court. The appellate court will determine upon the evidence presented to it whether the petitioner's claim should be allowed in whole or in part. The appellee's exceptions must also be overruled.

3. The question of the jurisdiction of the court is suggested. It is urged that the provisions of section 8, supra, are for the exclusive benefit of the ward, under which he only may be reimbursed for "his reasonable expenses" in defending himself against the guardianship proceedings; that a third party who has incurred expenses and performed services, although for the same purpose, cannot in his own behalf, and upon his own petition, invoke the provisions of that statute; that such a claim should be presented and enforced against the ward's estate in the usual way, like that of any other creditor.

At first it might seem that there is merit in the suggestion, but upon a more...