Fuller v. Marvin
| Decision Date | 28 February 1928 |
| Citation | 107 Conn. 354,140 A. 731 |
| Court | Connecticut Supreme Court |
| Parties | FULLER ET AL. v. MARVIN. |
Appeal from Superior Court, Hartford County; Newell Jennings, Judge.
Proceeding by Melvin L. Fuller and others to contest the will of Herbert Randall, deceased, opposed by Edward W. Marvin, executor. On appeal from the decree of a court of probate approving the will, the superior court sustained a demurrer to the answer to defendant's plea in abatement, and, on plaintiff's failure to plead over, rendered judgment that the appeal abate, and plaintiffs appeal from the ruling sustaining the demurrer and defendant's plea. No error.
Norris Maguire, of Boston, Mass., Robert Hirsch, of Bridgeport, and Morton Collingwood, of Boston, Mass., for appellants.
Alvan Waldo Hyde, of Hartford, for appellee.
Argued before WHEELER, C.J., and MALTBIE, HAINES, HINMAN, and BANKS JJ.J.
On April 12, 1927, the appellants took their appeal to the superior court in Hartford county from a decree of the court of probate for the district of Hartford rendered on March 8, 1927, " approving and admitting to probate" the will of Herbert Randall. The defendant executor pleaded in abatement to the appeal, alleging that on October 9, 1926, the appellants petitioned the court of probate praying that its decree entered on June 24, 1926 admitting this will to probate, be vacated, and that on March 8, 1927, after hearing had, that court sustained the demurrer of the executor and beneficiary to the petition and dismissed it. Legal notice of the hearing upon this petition was given by publication and by sending copies of such notice by registered mail to the petitioners who were all of full age. Further notice of an adjourned hearing upon the petition was given to the petitioners by registered mail. At all hearings on their petition the petitioners were represented by their attorney.
The foregoing facts were admitted in the petitioners' answer to the plea in abatement. The plea further recited that this appeal was not taken within one month after the decree of March 8, 1927, was entered. To this allegation the petitioners answered that they did claim an appeal from the decree within one month from March 8, 1927, the date of entry of the decree, which claim was accepted by the court of probate and the appeal duly entered in the superior court and the Supreme Court of Errors. The defendant demurred to this paragraph of the answer upon the grounds that the appeal was allowed more than one month after the entry of the decree appealed from as appears of record, that it is immaterial when the plaintiffs claimed their appeal, and that the records of the court of probate cannot be amended, altered, attacked, or varied by facts outside its record. The answer thus sought to alter the record of the court of probate, and the demurrer to it was upon the grounds that the appeal showed its allowance after the expiration of the statutory period and that the records of the court could not be altered by facts outside its records. General Statutes, § 5072, provides:
" All such appeals [probate] by those of full age and present, or who have legal notice to be present, shall be taken within one month, and if they have no notice to be present and are not present then within twelve months."
All that the appellant is required to do in perfecting his appeal is to present his motion for the appeal to the court, stating his interest (General Statutes, § 5075), and to give a bond with sufficient surety to prosecute the appeal to effect (General Statutes, § 5071). Upon compliance with these statutory requirements, the court is obliged to allow the appeal. Donovan's Appeal, 40 Conn. 154.
The appeal but ...
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Hartford Kosher Caterers, Inc. v. Gazda
...to appeal, the appeal is merely voidable. Pavlick v. Meriden Trust & Safe Deposit Co., 139 Conn. 733, 737, 97 A.2d 265; Fuller v. Marvin, 107 Conn. 354, 357, 140 A. 731; Orcutt's Appeal, 61 Conn. 378, 381, 24 A. 276. The defect in an appellant's motion must be seasonably asserted by a plea ......
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Kron v. Thelen
...thirty days of the decree. No issue whatsoever of lack of notice was discussed in this court's decision. Finally, in Fuller v. Marvin, 107 Conn. 354, 140 A. 731 (1928), the plaintiffs made a claim of appeal, which was accepted by the Probate Court, within thirty days of the decree appealed ......
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Phinney v. Rosgen
...Trust Co., supra, 150 Conn. 566, 192 A.2d 44; Exchange Buffet Corporation v. Rogers, 139 Conn. 374, 378, 94 A.2d 22; Fuller v. Marvin, 107 Conn. 354, 357, 140 A. 731. The late filing rendered the appeal voidable, but not void. Heiser v. Morgan Guaranty Trust Co.,supra, 150 Conn. 567, 192 A.......
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Halpine v. Halpine, No. CV-05-4003861 (CT 4/20/2006)
...to be taken advantage of seasonably by a plea in abatement." (Citations omitted; internal quotation marks omitted.) Fuller v. Marvin, 107 Conn. 354, 356-57, 140 A. 731 (1928). "Matters that render an appeal void go to the very capacity of a court to hear the type of claim made and where the......