George v. Infantolino, 81-323-A

• Decision Date: 04 June 1982
• Docket Number: No. 81-323-A,81-323-A
• Citation: 446 A.2d 757
• Parties: Estelle GEORGE v. Yvette INFANTOLINO et al. ppeal.
• Court: Rhode Island Supreme Court

Page 757

446 A.2d 757

Estelle GEORGE v. Yvette INFANTOLINO et al.

No. 81-323-Appeal.

Supreme Court of Rhode Island.

June 4, 1982.

Leonard A. Kamaras, Providence, for plaintiff.

Boyer, Reynolds & DeMarco, Anthony F. DeMarco, Providence, for defendants.

OPINION

KELLEHER, Justice.

This is a probate appeal in which we are being asked by the defendants, through their invocation of our Rule 16(g), to dismiss summarily the appeal of the plaintiff, Estelle George (Estelle), from an order of the Superior Court dismissing her appeal from a decree of the Probate Court of the City of Pawtucket.

The record before us indicates that on October 4, 1979, Estelle's mother, Louise Michaud (Louise), died leaving a will in which she left her entire estate to her niece, Yvette Infantolino, and Yvette's husband, Albert. In her will Louise acknowledged that she had intentionally made no provision for either Estelle or Estelle's daughter, Tammy, because she was confident that Yvette and her husband would make "adequate provision for them [Estelle and Tammy] out of the estate * * * but nothing herein shall be construed as limiting the absolute character of the gift to my niece and her husband."

A petition seeking probate of the will was filed in the Pawtucket Probate Court on October 18, 1979, and notice of the pendency of the petition was mailed to Estelle and duly advertised. These actions were taken pursuant to the provisions of G.L.1956 (1969 Reenactment) §§ 33-22-3 and 33-22-11. On November 7, 1979, the will was admitted to probate, and letters testamentary were issued to the named co-executors, Yvette and attorney Alfred J. Gemma.

Although Estelle was well aware of the probate proceedings, she took no concrete action to protect her interests for almost six months. On May 1, 1980, she filed a motion in the Probate Court based upon a portion of G.L.1956 (1969 Reenactment) § 8-9-11 which vests jurisdiction in the Probate Courts situated in each of the state's thirty-nine municipalities to undertake the "probate of wills and grant administration on the estate of deceased persons who, at the time of their decease, were inhabitants of or residents in such town or city * * *." The petition for probate alleged that when Louise died, she was a resident of Pawtucket. However, Estelle's motion claimed that the Pawtucket Probate Court "had no jurisdiction" because her mother had died a resident of the city of Woonsocket. The motion sought to "vacate, set aside, and cancel all orders and decrees," particularly the November 7, 1979 decree admitting the will to probate.

Estelle's charge of no jurisdiction falls on deaf ears because she cannot establish a clear absence of subject-matter jurisdiction. See Hartt v. Hartt, R.I., 397 A.2d 518 (1979). We need only point to what occurred and what was said in Eckilson v. Greene, 61 R.I. 394, 1 A.2d 117 (1938). In Eckilson the Cranston Probate Court had appointed a son administrator of his mother's estate. Subsequently, the children of a deceased daughter filed a petition to dismiss the administration proceedings, alleging that their grandmother had died an inhabitant and resident of the city of Warwick. There, as here, the dismissal petition was filed long after the time for taking an appeal from the appointment of the fiduciary had expired.

In rejecting the dismissal petition of the intestate's grandchildren, the court noted that the Cranston Probate Court, in designating the son as the administrator of his mother's estate, had either through direct expression or by clear implication made a finding that the mother at the time of her decease was an inhabitant and resident of Cranston. The court also pointed out that the decedent's grandchildren could have taken an appeal to the Superior Court within forty days after the entry of the decree admitting the will to probate and could have raised the residency issue as one of the grounds for appeal.

It was also pointed out in Eckilson that the grandchildren could have taken advantage of the provisions of G.L.1923, ch. 358, § 6, which in essence permitted a Probate Court to modify any decree entered on an uncontested petition as...