Hadfield v. Cushing

• Decision Date: 22 May 1913
• Citation: 86 A. 897,35 R.I. 306
• Parties: HADFIELD v. CUSHING.
• Court: Rhode Island Supreme Court

86 A. 897

35 R.I. 306

HADFIELD

v. CUSHING.

Supreme Court of Rhode Island.

May 22, 1913.

Proceeding by Arthur Cushing, as next friend of George W. Hall, for the appointment of a guardian for the said Hall in Rhode Island; he being alleged an incompetent person of full age residing in Massachusetts. An order was entered appointing Cushing as said guardian, and Samuel Hadfield, as guardian of Rita Fanning, the granddaughter and sole heir of the said Hall, appealed to the superior court. From an order dismissing the appeal on the merits, said Hadfield brings his bill of exceptions. On motion to dismiss appellant's bill of exceptions. Motion granted, and case remitted to superior court, with directions to dismiss the appeal.

William J. Brown, of Providence, for appellant.

Benjamin W. Grim, of Providence, for appellee.

BAKER, J. On the 26th of August, 1912, the court of probate of the town of East Providence appointed Arthur Cushing, of North Providence, guardian of the estate in Rhode Island of George W. Hall, a person of full age and a resident of the town of Westport, in the commonwealth of Massachusetts. The petition was presented by said Arthur Cushing, as friend of said George W. Hall, who joined in the petition, and who, as shown by the record, was present at the hearing, was sworn and assented to the appointment. The decree of the court of probate shows that Hall was adjudged to be a person lacking in discretion in managing his estate and likely to bring himself or family to want or suffering and to render himself or family chargeable. Mr. Cushing duly qualified as such guardian by giving the bond required by the court of probate.

Under date of September 27, 1912, Samuel Hadfield, of Fall River, in said commonwealth, representing himself to be the duly appointed guardian of Rita Fanning, the granddaughter and sole heir at law of said George W. Hall, and claiming in his said capacity as said guardian to be aggrieved by the decree of said court of probate appointing said Arthur Cushing guardian as aforesaid, in his capacity as guardian as aforesaid claimed an appeal to the superior court, and in due time filed his reasons of appeal in the superior court as follows, namely: "(1) That said probate court was without jurisdiction or authority to act on said petition of Arthur Cushing. (2) That there was no proper service of notice of said petition. (3) That in view of the circumstances of this case said Cushing was not a suitable and proper person to be appointed guardian of said Hall." The case was heard by the presiding justice, sitting without a jury, December 9, 1912. It appears from the transcript of argument of counsel on file in the case that the counsel for the appellee, while making no formal motion to dismiss, brought to the attention of the court the fact that the appellant was not a person aggrieved under the statute authorizing appeals in such cases. The court, however, declined to act on that suggestion, and, deciding the case on its merits, dismissed the appeal. To the action of the presiding justice appellant excepted, and has brought his bill of exceptions to this court.

Under date of January 27, 1913, the appellee filed in this court a motion to dismiss the appellant's bill of exceptions, on the grounds that it appears by the record that said Samuel Hadfield is not a person aggrieved, under the provisions of section 1 of chapter 311 of the General Laws, by the decree of the probate court of East Providence appointing said appellee guardian in Rhode Island of the estate of said George W. Hall, and that it appears by said bill of exceptions that said appellant had no interest in the appointment of said appellee as said guardian. The case has been heard on said motion to dismiss the bill of exceptions. There is no evidence or suggestion even to show that the appellant is aggrieved personally by the decree in question. Indeed, he makes no such claim, but alleges himself to be aggrieved by said decree only in his capacity as guardian of Rita Fanning.

Passing the technical question as to whether the appeal has been properly taken in his own name, instead of hers, and treating the appeal as if taken by her, it is to be regarded as the well-settled law of this state that as an expectant heir of her grandfather, now living, said Rita Fanning is not aggrieved by the decree of the probate court in question, so as to entitle her to appeal therefrom. See Hamilton v. Court of Probate, 9 R. I. 204, Gannon v. Doyle, 16 R. I. 726, 19 Atl. 331, Tillinghast v. Brown University, 24 R. I. 179, 52 Atl. 891, and McKenna v. McKenna, 29 R. I. 227, 69 Atl. 844. See, also, Nimblet v. Chaffee, 24 Vt. 628, and Deering v. Adams, 34 Me. 421.

The appellant, however, claims that the motion to dismiss comes too late, and that the hearing of the appeal on its merits waived all defects as to parties and to persons. He cites a number of cases in support of his claim. Not many of the cases cited by him are pertinent....