Cousens v. Advent Church of City of Biddeford

• Decision Date: 05 December 1809
• Parties: COUSENS v. ADVENT CHURCH OF CITY OF BIDDEFORD.
• Court: Maine Supreme Court

45 A. 43

93 Me. 292

COUSENS

v. ADVENT CHURCH OF CITY OF BIDDEFORD.

Supreme Judicial Court of Maine.

Dec. 5, 1809.

(Official.)

Exceptions from supreme judicial court, York county.

Bill by James H. Cousens against the Advent Church of the City of Biddeford, praying that the defendant corporation be required to pay to the plaintiff a legacy of $3,000, and other sums and bequests, which he claimed were due him under the will of Charles E. Rumery, deceased, made In 1884, and alleged to have been fraudulently suppressed or destroyed by Eliza A. Rumery, his wife, and never probated.

The defendant answered and demurred to the bill, and, the presiding justice having sustained the demurrer, the plaintiff took exceptions to this ruling and order of the court. Exceptions overruled.

Argued before PETERS, C. J., and HASKELL, WISWELL, STROUT, and FOOLER, JJ.

J. M. Stone and C. S. Hamilton, for plaintiff.

J. O. Bradbury and Geo. F. & Leroy Haley, for defendants.

STROUT, J. Demurrer to the bill was sustained by the justice hearing the case, and exception taken. The only question is whether the case made by the bill, if proved, affords ground for the equitable relief sought.

The bill alleges: That Charles E. Rumery made his will on the 16th day of January. 1870, and died on May 14, 1885. This will was admitted to probate by decree of the probate court, and, on appeal by complainant, by the supreme court of probate. That under this will Eliza A. Rumery, his wife, took all of the estate of Charles, and that by her will she gave it to defendant, who since her death has received and still holds the same.

It alleges: That in the summer or fall of 1884 Charles E. Rumery made another and later will, in which he gave complainant $3,000, and, he believes, other valuable gifts; that Charles exhibited this will to his wife, and told her that he had given complainant $3,000. That thereupon she became very indignant, and said complainant should never receive a cent of it. That this last will was fraudulently concealed or destroyed by Eliza, and has never been found. That at the time of the probate of the will of 1870 complainant was unable to prove the execution and contents of the later will of 1885, but that he has since discovered, and is now able to make, such proof. That defendant has already received, as legatee of Eliza, a little over $6,000, and will receive $1,000 more on the death of this complainant, which is now held by a trustee. It charges that by law the defendant holds this sum of $6,000 in trust to pay the complainant the $3,000 legacy to him, and other sums given him by the will of 1884. The prayer is that defendant be decreed to pay complainant "three thousand dollars, and such other sums and bequests as were therein given to him in the last will and testament of said Charles E. Rumery," and for other relief.

Wills do not become operative until proved and established in some court having jurisdiction for that purpose,—in this state, by allowance by the court of probate, or the appellate supreme court of probate. No other tribunal can give effect to a will. Until established in that forum, it has no life. This court, sitting in equity, cannot establish and execute an unprobated will. The first step for complainant to take is to prove his later will in the probate court.

But the complainant says he cannot do this, because an earlier will has been admitted to probate, and the judgment in that case is final, conclusive, and cannot be revoked. It may be that what has been done by the executor under that will, and its probate, will protect the executor; but it does not follow that, upon the probate of a later will which revokes the earlier, the estate may not be followed in the hands of the legatees who received it under the earlier will. Our statutes make no provision for a new trial or review in case of an appeal allowing a will. But if a will admitted to probate is afterwards found to be a forgery, or the testator proves to be alive, or a later will is discovered, it would be a reproach to the law to hold that such erroneous decree must stand. If it is to be...