Appeal of Garland

• Decision Date: 23 February 1927
• Citation: 136 A. 459
• Parties: Appeal of GARLAND.
• Court: Maine Supreme Court

136 A. 459

Appeal of GARLAND.^*

Supreme Judicial Court of Maine.

Feb. 23, 1927.

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Exceptions from Supreme Judicial Court, Somerset County, at Law.

Final accounting by Myra L. Garland, as administratrix of the estate of F. H. Garland, deceased. A decree of the judge of probate, disallowing the account and ordering a new account filed, was affirmed by the Supreme Court of Probate, and the administratrix brings exceptions. Exceptions overruled, decree of the Supreme Court of Probate affirmed, and case remanded to the probate court.

Argued before WILSON, C. J., and PHILBROOK, DEASY, STURGIS, JJ., and MORRILL, A. R. J.

Harvey D. Eaton and A. Raymond Rogers, both of Waterville, for appellant.

Edward F. Danforth, Butler & Butler, and Merrill & Merrill, all of Skowhegan, for appellee.

WILSON, C. J. This case is before this court on exceptions to the admission of certain evidence submitted to a jury in the Supreme Court of Probate, and to certain instructions by the presiding justice to the jury, and also to his decree.

The first question that arose at the trial was over the right of the appellant to amend her reasons of appeal. The question is not directly before this court on the appellant's bill of exceptions, as the amendment was allowed; but, as it may be involved in the exceptions to the charge of the presiding justice, since, if the amendment was improperly allowed, the appellant would not be aggrieved by any errors in the court's instructions relating to the issues raised by the amendment, and because the bar should not longer be left in doubt as to the law, we will consider it.

Until the case of Thomson, In re, 92 Me. 563, 43 A. 511, the right in probate appeals to amend the reasons of appeal in the Supreme Court of Probate not only had never been "mooted in argument," so far as the reported cases show, but had never been even suggested by the bar or court. In the above case, the court only said in passing, "Whether any amendment would be admissible, affording relief to the proponent, we need not consider as none is offered," although the defect was one readily cured by amendment.

In every previous case where the question of the sufficiency of the reasons of appeal had arisen (Hughes v. Decker, 38 Me. 162; Lunt v. Aubens, 39 Me. 397; Gilman v. Gilman, 53 Me. 184; Bradstreet v. Bradstreet, 64. Me. 211; Barnes v. Barnes, 66 Me. 286), the court had unequivocally stated, without an intimation that the lack could have been cured by an amendment, that the appellant was confined to the reasons stated in the appeal. Appeals have frequently been dismissed, where an amendment would have so patently cured the defect that, if any doubt had existed, an amendment would at least have been offered, and the right to amend determined long ago.

In Smith v. Chaney, 93 Me. 214, 44 A. 897, the court, in sustaining an amendment to the statement of the appellant's interest contained in the notice of appeal, held that a statement of the appellant's interest was not one of the reasons of appeal; but, inadvertently it may be, used language indicating that the right to amend the reason of appeal in substance was in doubt.

In Abbott, Appeal of, 97 Me. 278, 54 A. 755, the court dismissed an appeal, because the notice of appeal did not show that the appellant was aggrieved, and merely suggested that the notice of appeal might have been amended showing the interest of the appellant, as was done in Smith v. Chaney, supra.

But in Merrill Trust Co. v. Hartford, 104 Me. 566, 72 A. 745, 129 Am. St. Rep. 415, and in Burpee v. Burpee, 109 Me. 379, 84 A. 648, the court again in unequivocal language stated the rule:

"It is a well settled and familiar rule in this state on such appeals that the appellant is strictly confined to such matters and questions as are specifically stated by him in his reasons of appeal."

—without even an intimation that they could be enlarged by amendment.

Under such an apparently accepted construction of the statute governing probate appeals, without the right to amend the reasons of appeal in substance ever being claimed, so far as the reported cases show, and over a period of more than 70 years, the suggestion in the case of Clark, Appeal of, 111 Me. 399, 89 A. 245, that it was still a "mooted question" carries but little weight, especially as the court expresses no opinion upon the question.

A probate court and the Supreme Court of Probate are statutory courts, and the procedure therein is governed by statute, and not according to the common law. Bradstreet v. Bradstreet, supra. The statute requires the reasons of appeal to be filed in the probate court, and the statutory provision for notice must be strictly followed. Townshend's Will, In re, 85 Me. 57, 26 A. 969. No express authority to allow amendments to the reasons of appeal is given to the Supreme Court of Probate. Necessary authority to take all steps essential to the determination of all issues raised by the appeal is no doubt implied, but we think none is implied to consider issues on appeal other than those filed in the probate court as the grounds for the appeal.

Such appears to have been the accepted construction of this statute since its enactment. If it works a hardship, the Legislature can at any time readily enlarge it. But, under the views held by the court upon the other questions involved, it will work no hardship in this case, if, indeed, the amendment proposed in the case was more than additional specifications under the third reasons of appeal.

Passing to the issues raised by the exceptions, it is urged at the outset that in such cases exceptions do not lie to the admission of evidence or erroneous instructions of the court to the jury in such proceedings, as the jury's verdict is only advisory, and the court may not follow it. But it cannot be presumed that the court does not base its decree in any part on the jury's findings or answers, and, if their answers to questions submitted were the result of improper evidence submitted to them, or of erroneous instructions as to the law, the error may also appear in the decree of the court, especially where the decree follows the answers of the jury. Rawley, Appeal of, 118 Me. 109, 106 A. 120.

Appellant's exceptions 1 and 2 are overruled. The evidence of the withdrawal of the funds from the joint account and the deposit in her own name was admissible to show that the funds were in the possession of the administratrix. At least it was harmless. The evidence of her testimony given at a prior hearing has some bearing on the intent of the parties and her own credibility as a witness.

Exceptions 3, 4, 5, 6, 7, and 8 were to instructions given to the jury by the presiding justice as to the nature and creation of joint tenancies and the rights of parties under the contract entered into with a bank when deposits such as existed in this case are made. Under the view of the law held by this court governing such transactions, though the instructions given by the court to the jury did not literally comply with the rules hereinafter laid down, the errors were not harmful, and the exceptions thereto, as well as to the decree, must be overruled.

The crux of the case lies in the issue of what the rights of the parties are in such a deposit as the evidence shows existed here. At the time of their marriage in 1911 or 1912, according to the evidence in the case, each had a personal deposit; he in the Bangor Savings Bank of approximately $1.100, and she in the Pittsfield National Bank of approximately $800. On July 5, 1913, according to the statement of facts contained in the bill of exceptions, they went to work for the Great Northern Paper Company; he to have charge of one of its farms; she as housewife and cook. They remained in its employ in one capacity or another until July 14, 1919. What his or her occupation was after that time, whether he alone was the wage earner until his death, is not disclosed, except as her occupation may be inferred from the fact that for more than a year prior to his death they kept a boarder.

From the time of entering the employ of the Great Northern Paper Company, in July, 1913, to July 21, 1919, there is no direct testimony in the case as to what became of their earnings, or where their savings, if any, were kept by them, or under what conditions, or whether either had other property than the personal bank account above mentioned. On November 18, 1915, they went to the First National Bank of Bangor, and deposited the sum of $1,800, which was made payable to either or the survivor. No other deposit was made on this account until after their employment with the Great Northern Paper Company was terminated in July, 1919.

For three years their pay was $70 per month, and was paid by separate checks, $40 to Mr. Garland and $30 to Mrs. Garland. On August 23, 1916, their pay was advanced to $75 per month, but how divided between them does not appear, and July 1, 1917, they went to work at another farm, where they received $85 per month, and, after March 1, 1918, $100 per month. After July, 1917, their wages were paid in one check, and to Mr. Garland.

In July, 1919, the joint account in the First National Bank of Bangor had increased from interest dividends to $2,038.83, and Mr. Garland's personal account in the Bangor Savings Bank to $1,847.29. On July 21, 1919, he drew out the entire sum in his personal account, and all but $1 of the joint account, on an order payable to himself. As to what was done with this money, nearly $4,000, the evidence does not disclose, except that about this time a farm was bought in Orrington, Me., which two years later was sold for at least $3,000, which was re-deposited on the account; nor is the court informed as to whence came a deposit of $3,000 on the joint account in October, 1919, three months after the withdrawals in July, or what was done with a withdrawal by the husband of $2,000 from the joint account...