Cotting v. Tilton's Estate

• Decision Date: 06 April 1919
• Citation: 106 A. 113
• Parties: COTTING v. TILTON'S ESTATE.
• Court: Maine Supreme Court

106 A. 113

COTTING

v. TILTON'S ESTATE.

Supreme Judicial Court of Maine.

April 6, 1919.

Dunn and Morrill, JJ., dissenting as to allowance of one claim.

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

In the estate of Alonzo Tilton. Appeal to Supreme Court of Probate by Mattie T. Cotting from decree of the probate court allowing first account of executor. Decree affirming decree of probate court, and Mattie T. Cotting appeals and excepts. Remanded, with directions.

Argued before CORNISH, C. J., and SPEAR, PHILBROOK, DUNN, MORRILL, WILSON, and DEASY, JJ.

Charles H. Bartlett, of Bangor, for appellant.

Mayo & Snare, of Bangor, for appellee.

PHILBROOK, J. This cause originated in the probate court of Penobscot county.

The first account of the executor having been allowed, the appellant, interested as heir at law, appealed from the decree of the probate court to the supreme court of probate under the provisions of statute in such case made and provided. In the latter tribunal issues of fact were presented to a jury, the same having been framed by the presiding justice at the request of the appellee.

At the close of the testimony counsel for the appellant moved the court to enter judgment in her favor on the ground that the evidence was not sufficient to warrant the payment of certain items in the executor's account, the allowance of which payment gave rise to the appeal. The presiding justice overruled this motion, to which ruling the appellant took exceptions. The trial of the issues resulted in jury findings unfavorable to the contentions of the appellant, but favorable to the grounds upon which the decree appealed from was based. Following the advisory verdict of the jury, the presiding justice ruled that the propriety of paying the items in dispute had been sustained by the burden of proof, and thereafterward signed a decree affirming the decree of the probate court from which the appeal had been taken. The record, as disclosed by the bill of exceptions, is:

"And the plaintiff appellant is aggrieved at the ruling of the presiding justice in overruling the motion as aforesaid, and in his decision as a matter of law, and excepts thereto and prays that her exceptions may be allowed."

In addition to the bill of exceptions, filed and allowed, the appellant also filed, as part of her case, the following appeal:

"After the close of the testimony and arguments by counsel, the presiding justice decided (following the advisory verdict of the jury) that both the claimants had sustained the burden of proof to raise an implied promise on the part of Alonzo Tilton to pay Clara E. Johnson the sum of $3,120, as claimed, and Camillus K. Johnson the sum of $504, as claimed, and allowed both of said claims.

"The plaintiff is aggrieved by the decision of the court in this respect, viz.:

"First. As to the claim of Clara E. Johnson, the circumstances disclosed by the evidence are not sufficient upon which to base an implied promise of payment.

"Second. Even if so, the amount allowed is excessive.

"Third. As to the claim of Camillus K. Johnson, the circumstances disclosed by the evidence are not sufficient upon which to base an implied promise of payment.

"Fourth. Even if so, the amount allowed is excessive.

"Wherefore, the plaintiff appeals to the law court from the decision of the presiding justice and prays that her appeal may he allowed."

The appeal.—It will be observed that we are now about to discuss the appeal from the supreme court of probate to the law court, not the appeal from the probate court of original jurisdiction to the supreme court of probate. Counsel on both sides of the case, in their briefs, have apparently assumed that this appeal is, in effect, a motion for a new trial, but we do not feel justilied in concurring with that assumption.

Courts of probate are wholly creatures of the Legislature. Taber v. Douglass, 101 Me. 363, 64 Atl. 653. They are of special and limited jurisdiction. Their proceedings are not according to the course of the common law. Bradstreet v. Bradstreet, 64 Me. 204. A supreme court of probate is created by R. S. c. 67, § 31, as an appellate court; its jurisdiction and proceedings are clearly defined by statute. While provision is made by statute for appeal from the probate court of original jurisdiction to the supreme court of probate, it is significant that no provision is made for any appeal from the supreme court of probate, itself an appellate court, to the law court. An appeal from an appellate court would be somewhat anomalous, and such a proceeding, in the absence of express conditions, cannot be presumed as allowable practice. The right of appeal from any decree or order of the probate court is conferred by statute only, and can extend no further than the statute provides. Sprowl v. Randell, 108 Me....