Appeal of Terry

• Decision Date: 06 January 1896
• Citation: 34 A. 1032,67 Conn. 181
• Parties: Appeal of TERRY.
• Court: Connecticut Supreme Court

34 A. 1032

67 Conn. 181

Appeal of TERRY.

Supreme Court of Errors of Connecticut.

Jan. 6, 1896.

Appeal from superior court, Litchfield county; Thayer, Judge.

Appeal from probate by E. Clinton Terry, taken to the superior court in Litchfield county, and thence transferred to the superior court of Hartford county. From a judgment for the appellant, James Terry appeals. No error.

Henry Stoddard, for appellant.

William W. Hyde, for the appellee.

TORRANCE, J. The facts in this case, upon which the decision of the principal question in it depends, are in substance the following: In April, 1871, James Terry, a resident of the town of Plymouth, in this state, died, leaving a will, in which he had appointed Allen and Adams to be his executors, but Adams had died before the testator. Shortly after Terry's decease, the will was duly presented for probate in the court of probate for the district of Plymouth, and on the 22d of April, 1871, was duly proved and approved as the last will of the deceased. The record of that court, after reciting the approval of the will, proceeds as follows: "And, on the same day, Rollin D. H. Allen, named in said will as one of the executors thereof, and James Terry, of said Plymouth, to whom this court hereby grants administration with the will annexed (Joseph H. Adams, one of the executors named in said will, having deceased in the lifetime of the testator), appeared in court, accepted said trust, and gave bonds, with sufficient surety, in the sum of twenty thousand dollars, which were accepted and approved by said court." The administrator thus appointed was a son of the testator, and he "was never appointed administrator of said estate otherwise than by said order of April 22, 1871." Allen never resigned his trust, "and was never removed from his position as such executor until his death," in December, 1893. In all the steps taken in the settlement of the estate these two joined, the one acting as executor, and the other as administrator with the will annexed; and the final administration account, signed by both in their respective capacities, was accepted and approved in March, 1873. After this nothing further was done by either with reference to the estate down to the time of Allen's death, in 1893. In October and November, 1894, James Terry, claiming and representing himself to the court of probate in Plymouth to be the administrator of his father's estate, obtained, as such administrator, from said court, certain orders respecting the settlement of said estate. From these orders, E. Clinton Terry, a son of the testator, took an appeal to the superior court, chiefly on the ground that James Terry was not the administrator with the will annexed, because the order of April 22, 1871, appointing him to that office, was void and of no effect. The superior court took Mr. E. Clinton Terry's view of this matter, and thereupon rendered judgment reversing the orders appealed from; and from that judgment James Terry brings the present appeal.

If the probate decree of April 22, 1871, so far as it relates to the appointment of an administrator with the will annexed, is void, —that is, destitute of any legal effect whatever,—the judgment below must stand. On the other hand, if that decree, in the respect indicated, was merely erroneous,—that is, valid until set aside on a proper appeal,—then the judgment below should be set aside; for the decree in question would in that case be protected from collateral attack, under section 436 of the General Statutes. Counsel for the present appellant claim that the decree is not even erroneous; but in this, we think, they are mistaken. Under the circumstances disclosed by the record, where an executor capable of service appears in court, accepts the trust, is approved by the court, and duly qualifies, it is, by law, the duty of the court to commit the administration of the estate to him (Smith's Appeal, 61 Conn. 420, 427, 24 Atl. 273); and, under such circumstances we think it is equally the duty of that court, under the statute, to commit such administration solely and exclusively to him, for he is the person to whom alone while he remains capable, qualified, and in the performance of his duties, the law and the will give all the rights, and upon whom they impose all the duties, pertaining to such administration.

The important...