Gill v. Bromley
| Decision Date | 09 February 1928 |
| Citation | 107 Conn. 281,140 A. 721 |
| Court | Connecticut Supreme Court |
| Parties | GILL v. BROMLEY ET AL. |
Appeal from Superior Court, New Haven County; Earnest C. Simpson Judge.
Appeal by George H. Gill from an order and decree of the court of probate for the district of New Haven, dismissing and denying plaintiff's petition to open the decree ordering a distribution on July 20, 1923, and thereafter accepting the same, in the estate of Charlotte Bromley, and to order a new distribution in this estate, taken to the superior court in New Haven county and tried to the court. Motion by John M Bromley, executor, to dismiss the case and erase it from the docket, which the court granted, and plaintiff appealed. Error in part, and judgment affirmed as modified.
Charles S. Hamilton, of New Haven, for appellant.
Charles E. Clark and William B. Gumbart, both of New Haven for appellees.
Argued before WHEELER, C.J., and HAINES, HINMAN, BANKS, and FOSTER, JJ.
The petitioner alleges these facts. He was the husband of Charlotte Bromley; they lived together as husband and wife until on or about March 6, 1904, when, without cause, his wife left him and continued to live apart from him, without cause, until her death on December 21, 1922. A will purporting to be executed by her was filed in the court of probate for the district of New Haven, and the defendant Bromley was in the will appointed sole executor and proceeded with the settlement of her estate. In this settlement he falsely and fraudulently represented to the court of probate that the petitioner had abandoned his wife and willfully lived apart from her in neglect of all the duties of the marital relation, and also falsely and fraudulently and for the purpose of attempting to deprive the petitioner of his distributive share of the estate of his wife made a false affidavit in that court, stating that the petitioner had willfully abandoned his wife and neglected all the duties of the marital relation.
On or about July 20, 1923, a distribution was ordered by the court in this estate, and its entire amount distributed to Aaron H. Gill as sole distributee of the same, and no part of the estate has ever been distributed to the petitioner, who had no knowledge of the death of his wife until long after the distribution, although the executor well knew, or by the exercise of reasonable care might have known, of his whereabouts but sent no notice to him of the probating of the will or of the settlement of the estate. The petitioner had no notice or knowledge of the false statement to the court until January 8, 1925, when he was first informed of the probating of this will, and of the proceedings for the settlement of the estate. Upwards of $43,000 was left in the estate for distribution. The petitioner was married prior to April 20, 1877, and entitled to one-third of the estate for life, but has not been paid any part of the estate. Aaron H. Gill falsely and fraudulently made an affidavit and statement to the court that this intestate left as her only heirs at law and next of kin himself, the son of the intestate, and that the petitioner abandoned his wife in 1902 and continued this abandonment to the date of her death, and that he had not seen his father, the petitioner, for 17 years and did not know whether he was living or dead. The judgment of the court of probate does not set forth the ground of that court's dismissal of the petition, but the motion for the allowance of the appeal states that the respondents filed a plea to the jurisdiction, that the matters referred to in the petition were res adjudicata between the petitioner and the respondents, and that thereupon, without hearing any evidence as to the allegations of the petition, the court of probate denied the petition.
In the superior court the respondents moved to erase the case from the docket upon the ground that:
(1) The matters referred to in the petition were res adjudicata between the petitioner and the respondents.
(2) The court of probate and the superior court on appeal therefrom are courts of limited and statutory jurisdiction and have no authority or power to revoke, open, or set aside the decrees passed in the settlement of the estate and to pass the decree prayed for by the petitioner.
(3) It is not alleged in the petition, and nothing appears to show, that the decrees passed in the settlement of this estate were not in all respects legal and valid and made after the notice required by law; nor that any of the orders attacked in the petition were without the jurisdiction of the court of probate.
(4) It appears from the record on appeal that all of the orders attacked were within the jurisdiction of the court of probate by which they were made.
The court, having heard the parties, granted the motion and adjudged that the appeal be dismissed and erased from the docket.
The allegations of the petition must be taken as true on the motion to erase. The allegation that the petitioner had no knowledge of the decease of the intestate or of the proceedings taken in the settlement of her estate under her will is not an allegation that the notice required by the statute to be given was not in fact given. We must therefore assume that legal notice was given of the probate of this will, which may have been a notice " either public or personal, or both, as the court may deem best," to all parties known to be interested in the estate. Chapter 51 Public Acts of 1919. Public notice is publication in a newspaper in the probate district and such further notice, if any, as such court may prescribe. General Statutes, §...
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Palmer v. Palmer, 3864.
...114, 60 L.Ed. 327, and the decrees would be at most not void for lack of notice, but only ex parte as to plaintiff, Gill v. Bromley, 107 Conn. 281, 284, 140 A. 721; Murdoch v. Murdoch, 81 Conn. 681, 688, 72 A. 290, 29 Am.St.Rep. 231, and thus subject to modification or revocation by the pro......
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Palmer v. Reeves
... ... question of its jurisdiction has been raised, until that [120 ... Conn. 410] issue is determined. Olmstead's appeal, 43 ... Conn. 110, 112; Gill v. Bromley, 107 Conn. 281, 285, ... 140 A. 721 ... In ... Olmstead's appeal, supra, one reason of appeal ... assigned was that the ... ...
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Haverin v. Welch
...the meaning of § 4779, even as regards a party who had no actual notice. See Massey v. Foote, 92 Conn. 25, 28, 101 A. 499; Gill v. Bromley, 107 Conn. 281, 140 A. 721. Section 4884 of the General Statutes provides that before a Probate Court shall admit a will to probate it shall hold a hear......
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Folwell v. Howell
...because it has no general equitable powers and no right to grant new trials. Delehanty v. Pitkin, 76 Conn. 412, 56 A. 881; Gill v. Bromley, 107 Conn. 281, 140 A. 721; Carrington v. Holabird, 19 Conn. 84, 88. No question as to the proper defendants to this action or any improper joinder of p......