Costello v. Probate Court of City of Pawtucket
| Decision Date | 28 October 1964 |
| Docket Number | No. 3054,No. 1642,1642,3054 |
| Citation | 204 A.2d 307,98 R.I. 420 |
| Parties | Michael F. COSTELLO, Ex'r, v. PROBATE COURT OF the CITY OF PAWTUCKET. Elizabeth M. O'BRIEN v. Michael F. COSTELLO et al. M. P.; Equity |
| Court | Rhode Island Supreme Court |
Corcoran, Foley, Flynn & 8treanor, Francis R. Foley, Pawtucket, for Michael F. Costello.
Corcoran, Foley, Flynn & Treanor, Francis Geary, Providence, for Elizabeth M. O'Brien.
These cases were heard together. The first case, Costello v. Probate Court, is a petition for certiorari to review the action of the probate court of the city of Pawtucket wherein it ordered that an authenticated copy of the will and codicil of Ellen M. Darcey, deceased, as finally proved and allowed in Massachusetts, be filed and recorded and that letters testamentary be issued to Michael F. Costello.
The second case, O'Brien v. Costello, is an appeal from a decree of the superior court granting a temporary injunction after a hearing by a justice of that court upon the complaint's sworn bill. Neither party presented any evidence. Of the four respondents named in the bill of complaint, only two filed reasons of appeal and only the respondent Costello either briefed or argued his contentions and our decision is limited to his appeal.
We shall hereinafter refer to the first case as 'the certiorari proceedings,' to the second case as 'the equity cause,' to Michael F. Costello as 'Costello,' and to Elizabeth M. O'Brien as 'O'Brien.'
We consider first the certiorari proceedings wherein we issued the writ on the strength of Costello's allegations that the probate court acted illegally in fixing the amount of his bond at $200,000 with surety, in ordering that the bond be conditioned on the assets of the estate remaining 'in Rhode Island until such time as this matter has been fully litigated to whatever court it ultimately goes,' and in appointing three appraisers. Costello further represented that certiorari was the only adequate remedy by which those illegalities could be corrected. Pursuant to the writ, the pertinent records have been certified to this court.
The initial question is whether certiorari is the appropriate vehicle for reviewing the alleged errors. If it is not, we do not reach the issues of whether the actions of the probate court were without or in excess of its jurisdiction. Preliminarily we must determine whether some other adequate procedure was available for review of the claimed errors.
Since the enactment in 1905 of sec. 796 of the court and practice act, now G.L. 1956, § 33-23-1, this court has held that under our practice, in the absence of some contrary provision, the superior court has exclusive and original jurisdiction on appeals from orders and decrees of the probate court. MacKenzie & Shea v. Rhode Island Hospital Trust Co., 45 R.I. 407, 413, 122 A. 774. This is the procedure followed where the appealing party has been an executor or administrator.
Thus, in Rhode Island Hospital Trust Co. v. Hopkins, 38 R.I. 59, 94 A. 724, it was from a decree fixing an allowance out of the decedent's estate of a sum for the support of the testator's family; in Kenyon v. Hart, 38 R.I. 524, 96 A. 529, it was from a decree removing an administrator of an estate; and in Hall v. Burgess, 40 R.I. 314, 100 A. 1013, it was from a decree denying permission to provide perpetual care for the decedent's grave.
On these authorities we conclude that Costello was an aggrieved person who in these circumstances could have appealed to the superior court, there had a hearing de novo, and then could have final review in this court by a bill of exceptions. That Costello may have neglected to claim and thereby lost the statutory right to claim an appeal to the superior court does not open the door to him for review by certiorari for the writ is not a substitute for an appeal lost by lapse of time. Cohen v. Superior Court, 39 R.I. 272, 97 A. 794.
Having concluded that Costello had another adequate remedy for review of the alleged illegal actions of the probate court, certiorari is unavailable unless there are unusual or exceptional circumstances. This is the rule laid down in Hyde v. Superior Court, 28 R.I. 204, 66 A. 292, and reaffirmed many times since and as recently as the last term of court in Rogers v. Rogers, R.I., 201 A.2d 140.
Such unusual or exceptional circumstances are found, Costello argues, in the proliferation of pending legal preceedings affecting the Darcey estate, a condition which he contends will occasion great...
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...heir of the decedent, as O'Brien and Michael F. Costello as Costello. We have considered some aspects of this cause in Costello v. Probate Court, R.I., 204 A.2d 307, but it will serve no useful purpose to repeat here the facts It appears that Kathryn E. Conlon, another niece and heir of Ell......
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