Davis v. Higgins, 7816.
| Decision Date | 11 December 1937 |
| Docket Number | No. 7816.,7816. |
| Citation | 195 A. 495 |
| Parties | DAVIS v. HIGGINS. |
| Court | Rhode Island Supreme Court |
Exceptions from Superior Court, Providence and Bristol Counties; Alberic A. Archambault, Judge.
Proceeding by William T. Davis against Joseph R. Higgins, executor of the last will and testament of Eva E. Higgins, deceased. From a decree of the Probate Court granting executor's petition, claimant appealed to the Superior Court, and to several rulings therein, claimant took exceptions.
Exceptions overruled and case remitted.
Leo M. Goldberg and Philip B. Goldberg, both of Providence, for appellant. Edward M. Sullivan, of Providence, for appellee.
This is an appeal from a decree of the probate court of the city of Cranston, granting a petition of the executor of the last will and testament of Eva E. Higgins, deceased, to file out of time a statement of disallowance of a claim filed by William T. Davis against the estate of said deceased under the provisions of General Laws 1923, c. 365, §6.
This appeal was duly prosecuted to the superior court by said claimant and was heard by a justice of that court sitting with a jury. At the conclusion of the evidence, said executor, the appellee here, moved for a directed verdict in his favor, which was granted by the trial justice. The claimant, the appellant here, excepted to this ruling, which exception, together with four other exceptions taken during the trial, form the basis of the appellant's bill of exceptions in this court.
Before considering these exceptions, we shall first consider briefly two contentions of the appellee substantially to the effect that the superior court is without jurisdiction in this case.
The appellee contends that no appeal lies to the superior court from a decree of the probate court on a petition brought under the provisions of Gen.Laws 1923, c. 365, § 6, for the reason that under said section the decision on such a petition rests in the discretion of the probate judge. This contention is clearly without merit. The probate court, it is true, exercises a discretion in granting or refusing to grant requests under said section 6, but it is a judicial discretion and, as was said in Tillinghast v. Iverson, 50 R.I. 23, at page 25, 144 A. 673, 674: See, also, Emsley v. Young, 19 R.I. 65, 31 A. 692 and McKenzie & Shea v. Rhode Island Hospital Trust Co., 45 R.I. 407, 122 A. 774.
But the appellee further contends that this procedure, followed and approved in Tillinghast v. Iverson, supra, is now nullified by the rule of this court adopted on February 19, 1934, pertaining to appeals under the second proviso of section 3 of said chapter. This contention rests upon an unwarranted extension of that rule, which expressly refers only to appeals from orders or decrees of the probate court granted on petition under the second proviso of section 3. It cannot be extended by implication to refer to any other part of that section, or to any other section. That there may be the same reason for the promulgation of such a rule to govern procedure on appeals from orders and decrees granting relief under section 6 is immaterial. Until this court expressly broadens said rule, it cannot be construed to include this latter section.
In Smith v. William H. Haskell Mfg. Co., 28 R.I. 91, 93, 65 A. 610, 611, it was said of another rule then under consideration: ...
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O'Brien v. Costello
...the grant of letters for the managing of a decedent's estate pending the appeal's outcome. G.L.1956, §§ 33-23-2, 33-23-3; Davis v. Higgins, 59 R.I. 339, 195 A. 495; Vaill v. McPhail, 34 R.I. 361, 83 A. O'Brien's reasons of appeal filed in the superior court raise fact questions as to decede......
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Malinou v. McCarthy, 10593
...of the probate judge, but is rather a court for retrial of the case de novo. Donovan v. Potter, 70 R.I. 75, 37 A.2d 69; Davis v. Higgins, 59 R.I. 339, 195 A. 495; Kenyon v. Hart, 38 R.I. 524, 96 A. 529. Under this system the effect of the probate judge's judicial attitude toward appellant i......
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Raposa's Estate, In re
...not presently before us. After due consideration we are of the opinion that the instant case is governed by our decision in Davis v. Higgins, 59 R.I. 339, 195 A. 495, where the same contention as now urged by the administrator here was unqualifiedly rejected by this The administrator next c......
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Donovan v. Potter, 8603.
...novo upon all questions that were properly before the probate court. Vaill v. McPhail, supra ; McAlear v. McAlear, supra; Davis v. Higgins, 59 R.I. 339, 342, 195 A. 495. Nothing in the cases cited by appellant, supra, or in rule 14 is inconsistent with the above conclusions. In the Liscomb ......