Delehanty v. Pitkin

• Decision Date: 26 January 1904
• Citation: 56 A. 881,76 Conn. 412
• Court: Connecticut Supreme Court
• Parties: DELEHANTY v. PITKIN et al.

56 A. 881

76 Conn. 412

DELEHANTY

v. PITKIN et al.

Supreme Court of Errors of Connecticut.

Jan. 26, 1904.

Appeal from Superior Court, Hartford County; Milton A. Shumway, Judge.

Application by John J. Delehanty for the probate of an instrument as the last will of Henry Kennedy, deceased. From an order refusing probate the applicant appealed to the superior court, and from a judgment sustaining a demurrer to the plaintiff's answer to a plea in abatement and to the jurisdiction the applicant appeals. Affirmed.

Lewis E. Stanton and Sidney E. Clarke, for appellant.

Charles E. Perkins, Arthur F. Eggleston, and William Waldo Hyde, for appellees.

TORRANCE, C. J. In March, 1899, the court of probate for the district of Hartford approved a writing dated December 29, 1898, as the last will of Henry Kennedy. In January, 1903, Delehanty, the appellant here, offered for probate in said court a writing dated February 24, 1899, purporting to be a later and the last will of Kennedy, and petitioned the court in writing to set aside its approval of the former will, and to approve of the later will in its stead. For brevity the will made in December may be called the.

"December will" and the other the "February will." The court denied the petition, and from that denial Delehanty appealed to the superior court. In the petition to the court of probate Delehanty alleged, among other things, that the original of the February will could not be produced in court, because one of the executors under the December will had obtained possession of the February will, and had "by fraud destroyed the same." The petition had annexed to it what was alleged to be a copy of the February will, "as near as the same can be ascertained." In the reasons of appeal filed by Delehanty in the superior court the above allegations were also made, and a copy of said February will was attached to said reasons. To the reasons of appeal the appellees made no reply, but they filed a plea in abatement of the appeal for want of jurisdiction, to which they annexed a copy of the petition of Delehanty to the court of probate. To this plea Delehanty demurred, and the demurrer was overruled. He then moved to amend his reasons of appeal, and this motion was denied. He then filed an answer to the plea, in which he admitted all the substantial allegations of fact therein made, and set up certain additional facts, showing, as he alleged, that the superior court had jurisdiction of the appeal, and that he had never had his day in court in respect to the matters set up in the plea and answer. The reasons of appeal were not made a pari either of the plea or the answer, nor was a copy of the February will made a part of the plea or answer. The answer contained no allegation that the February will had been destroyed "by fraud," as alleged in the petition and reasons of appeal. The appellees demurred to the answer generally, and to each paragraph of it specifically. The court sustained this demurrer upon the grounds stated in it, and, no further pleadings being filed, dismissed the appeal.

Whether the plea and answer, standing alone, contain all the facts essential to a correct decision of the case, may, perhaps, admit of some doubt; since they do not contain certain allegations of fact made in the petition to the court of probate and in the reasons of appeal, which may have and are claimed by Delehanty to have some bearing upon the questions presented upon this appeal. Because of this doubt, and for the purpose of determining the case upon its merits, we shall consider all the essential facts in the case, whether found in the petition to the court of probate, the reasons of appeal, the plea, the answer, or the judgment. The essential facts thus appearing upon the record are in substance these: In March, 1899, the court of probate approved the December will as the last will of Kennedy, and committed the administration of the estate to the executors named in said will. After this such proceedings were had in the court of probate that said estate was distributed, and finally settled, as a testate estate, under said will, in February, 1900. In January, 1902, certain minor beirs of Kennedy took an appeal from the probate decree approving the December will, and in their reasons of appeal they alleged that the December will was not Kennedy's last will, because, as was alleged, he had made a later one, known as the February will. This appeal, to which Delehanty was not a party, was tried in May, 1902, and after a full hearing, lasting some weeks, the superior court decided that the December will was the last will of Kennedy, and that the February will was not his will, and thereupon confirmed the decree from which said heirs bad taken their appeal. This judgment, upon appeal to this court, was sustained in December, 1902. Kirbell v. Pitkin, 75 Conn. 301, 53 Atl. 587. Delehanty is a legatee and beneficiary under the February will, but not under the December will. The February will, in its legatees and beneficiaries and in its legacies given and benefits conferred, differs very much from the December will, and it wholly revokes that will. Delehanty had no knowledge of the existence of the February will until at least a year after the settlement of Kennedy's estate under the other will. The February will is the real last will of Kennedy. In March, 1899, one of the executors under the December will obtained possession of the February will, "and by fraud destroyed the same." These are, in substance, the essential and controlling facts in the case, which must be taken to be admitted upon the record, in considering the questions raised upon this appeal. Upon them the appellees claimed that the court of probate had no power to try the questions presented in Delehanty's petition, and consequently that the superior court, as a court of probate, had no power to try the questions presented in the reasons of appeal. The court sustained this claim and dismissed the appeal. It is not, perhaps, clear from the record whether the probate court's refusal to grant the petition of Delehanty proceeded on the ground that he had failed to prove the existence of a later will or on the ground of want of power to set aside the former decree; but, as all the parties before us have assumed that such refusal proceeded on the latter ground, we also will assume that to be the fact. As the February will is radically different from, and expressly revokes, the December will, the approval of the former necessarily involves the disapproval of the latter, and the reversal of the decree approving the latter, and of all decrees and orders made in the settlement of the Kennedy estate under the December will, so far as they are inconsistent with the settlement of the estate under the February will.

It will thus be seen that the real question in the case, stripped of all its wrappings, is this: Upon the facts as they appear of record, had the court of probate power to reverse or set aside the decree approving the December will? If it had, the judgment be low should be reversed, and, if it had not, that judgment should stand. So far as wa know, this is a question of first impression in this state, and as the solution of it depends largely, if not entirely, upon our own statutes and decisions, they alone will be considered in discussing it. Such a question was recognized, but not decided, in Potwine's Appeal, 31 Conn. 381. In discussing tbis question it must be borne in mind that our courts of probate possess only such powers as are expressly or by necessary implication conferred upon them by statute (Hotchkiss v. Beach, 10 Conn. 232-238; Fotwine's Appeal, 31 Conn. 381; Hall v. Pierson, 63 Conn. 332-341, 28 Atl. 544); and also that within their jurisdiction their decrees, while unreversed, are as conclusive and binding as those of any other court (Judson v. Lake, 3 Day, 318; Mallory's Appeal, 62 Conn. 218-220, 25 Atl. 109; and cases hereinafter cited as to the remedy by appeal). The decree approving the December will then had all the elements of a final judgment. Until set aside in some lawful way, all the facts necessary to support it are to be taken as true beyond contradiction or dispute; and among those facts are the following: That the December will was the last will of the testator, that it was unrevoked at his death, that he had the requisite capacity to make it, and that it was made and attested as the law required. That it was his last will, and that it was unrevoked at the time of his death, are facts as conclusively established by the decree of approval as is the fact that he had the legal capacity to make it. Dickinson v. Hayes, 31 Conn. 417. Now, the power to set aside a decree of this kind, after the estate is settled, is not in express terms anywhere given to our courts of probate; but the appellant claims that it is given to them by necessary implication. This claim is based upon two facts; (1) That to those courts is given exclusive original power to probate wills; (2) that they are empowered (Gen. St. 1902, § 191) "to make any lawful orders and decrees necessary to carry into effect the power, authority, and jurisdiction" so conferred. Section 191, supra, is merely an affirmance of a power already given in the general power to probate wills; for that general power necessarily carries with it the incidental power to do all things necessary to carry the general power into effect. The argument is this: That the exclusive original power 1o pass a decree approving or rejecting a will, coupled with the incidental power to do all things necessary to carry the general power into effect, necessarily carries with it the power to set aside such decrees. In other words, the claim is that the power to pass a decree by necessary implication carries with it the power to set aside such decree. If the Legislature had not given to some other tribunal the general power, on appeal, to modify, set aside, or confirm...