Haley's Estate, In re

• Decision Date: 27 November 1951
• Citation: 84 A.2d 808,147 Me. 173
• Parties: In re HALEY'S ESTATE. Appeal of CROCKETT.
• Court: Maine Supreme Court

Page 808

84 A.2d 808

147 Me. 173

In re HALEY'S ESTATE Appeal of CROCKETT.

Supreme Judicial Court of Maine.

Nov. 27, 1951.

Titcomb & Siddall, Sanford, for appellant.

Arthur A. Greene, North Conway, N. H., for legatees.

Lausier & Donahue, Biddeford, for Winn E. Broughton, sole heir at law.

Before MURCHIE, C. J., and THAXTER, FELLOWS, MERRILL, NULTY and WILLIAMSON, JJ.

MERRILL, Justice.

On exceptions. Sumner O. Haley, a resident of York County, died June 8, 1950, leaving an instrument purporting to be his last will and testament. By this will he disposed of an estate amounting to some $96,000. His sole heir was a first cousin, Winn Broughton, otherwise known as Winn E. Broughton. By the will he left him a token bequest of $100. He also left the sum of $500 to Flora D. Palmer, who had been his housekeeper for some forty-eight years. He divided the residue into six equal shares, one of which he gave either to the child or the children of each of six named deceased first cousins. Of these second cousins nine were residents of the Conways in New Hampshire. On June 27, 1950, Pliny Crockett, a beneficiary and the executor named in the will, presented the same for allowance to the Probate Court for York County.

The docket of the Probate Court shows that on July 14, 1950 'Winn Broughton' appeared by William P. Donahue. Said docket also shows that on November 2, 1950 Arthur A. Greene of North Conway, New Hampshire, appeared 'for thirteen different heirs at law'. In passing it may be noted that Winn Broughton was the sole heir at law of the deceased; that the probate docket does not disclose the names of those for whom Arthur A. Greene appeared; and that William P. Donahue, by whom Broughton appeared before the Judge of Probate, is an attorney at law residing in this State. On November 14th the Judge of Probate disallowed the will.

Within the time allowed by law, to wit, on November 29, 1950, Pliny Crockett, in his individual capacity and as the executor named in the will, filed his appeal and reasons of appeal in the Probate Court. The 'appeal and reasons of appeal' were dated November 20, 1950. The appeal and reasons of appeal bear an endorsement dated November 29, 1950 signed by the Judge of Probate ordering them filed. On the same date, November 29, 1950, Crockett filed an appeal bond. This bond was dated November 24, 1950 and refers to the appeal to which it is applicable as claimed November 20, 1950. This appeal bond bears an endorsement dated November 29th, 'examined and approved', signed by the Judge of Probate. There is no evidence in the case which indicates any action with respect to the time of taking and claiming the appeal except as aforesaid. Within the time prescribed by R.S. Chap. 140, Sec. 33, the appellant caused a copy of the reasons of appeal, attested by the Register, to be served upon William P. Donahue, the resident attorney by whom Winn Broughton appeared before the Judge of Probate. Within the time prescribed by said statute for service of the reasons of appeal, Arthur A. Greene accepted service for those for whom he had appeared in the Probate Court.

In the Supreme Court of Probate the contestant, Broughton, moved to dismiss the appeal on the grounds that service was not made as required by Sec. 33, supra, and that the bond did not comply with statutory requirements. To the denial of this motion he took exceptions. He also took exceptions to rulings on the admissibility of evidence made by the Justice of the Supreme Court of Probate during the trial. He also took exceptions to the final decree of said Justice allowing the will, on the grounds that there was no evidence from which it could be found that the will was executed according to law, or that Sumner O. Haley at the time of the executing of the same was of sound mind, and that all of the evidence in the case required a finding as a matter of law that the execution of the will was obtained by undue influence. It is upon these exceptions, they having been presented and allowed, that the case is now before this Court.

The exceptions to the denial of the motion to dismiss the appeal must be overruled. The statute, R.S. Chap. 140, Sec. 33, requires that service of the reasons of appeal be made upon 'all the parties who appeared before the judge of probate on the case that have entered or caused to be entered their appearance in the docket of said court.' Service is not required to be made on any other persons than those specified in the statute. Nor are any other persons than those specified in the statute entitled to have service made upon them.

The purpose of limiting the persons upon whom service of reasons of appeal must be made to those who 'appeared before the judge of probate on the case that have entered or caused to be entered their appearance in the docket of said court,' is to give the appellant definite record information of those upon whom the reasons of appeal must be served. The only person who appeared before the Judge of Probate 'on the case' and whose appearance had been entered on the docket within the meaning of Sec. 33, supra, was Winn Broughton. The appearance of Arthur A. Greene for thirteen unnamed heirs did not sufficiently identify the persons for whom he entered an appearance so that the appellant had notice of their identity to enable him to make service upon them. They neither entered nor caused to be entered their appearance upon the docket of the Probate Court within the meaning of Sec. 33, supra. The appellant was not required to make service of the 'reasons of appeal' upon them or either of them. This being true, the question of the sufficiency of the acceptance of service for them by their attorney becomes immaterial.

The other suggested ground for dismissing the appeal is that the bond is defective as an appeal bond. The claimed defect is that the bond is dated November 24, 1950 and refers to the appeal as having been claimed on November 20, when in fact the appeal was not claimed or taken until November 29, the date 'the appeal and reasons of appeal' were filed in the Probate Court.

The filing of the bond required by Sec. 33 of Chap. 140 of the Revised Statutes is an essential jurisdictional requirement, without which a probate appeal cannot be perfected. Appeal of Bartlett, 82 Me. 210, 19 A. 170. In the instant case although in strictness the appeal was not claimed until November 29, the date when the 'appeal and reasons of appeal' were filed in the Probate Court, these papers were dated November 20. Although the bond was dated November 24, it was not presented to the Probate Court until November 29, and then simultaneously with the aforesaid appeal and reasons of appeal. The fact that the bond refers to the appeal as having been claimed on the date of the papers, November 20, instead of on November 29, the date it was filed in court, does not vitiate the bond. There can be no doubt as to the identity of the appeal to which this bond refers. It sufficiently identifies the proceeding in which it is filed, and to which it relates. The fact that the bond bears a date prior to the date of filing the appeal is also immaterial. It was made and dated subsequent to the making of the appeal papers, and it took effect not from the date which it bears upon its face but from the date on which it was delivered, to wit, filed in the Probate Court and approved by the Judge thereof. This bond could be enforced with respect to this appeal. It was and is a sufficient bond under the statute.

The right of appeal in probate matters is conditional. It can be presented only upon complying with the requisites of the statute relating to such appeal. Appeal of Bartlett, supra. Among these prerequisites are the filing of an appeal bond and service of the reasons of appeal as required by Sec. 33, supra. Appeal of Bartlett, supra, Nichols v. Leavitt's Estate, 118 Me. 464, 109 A. 6. In this case because the bond filed meets the statutory requirements, and because the reasons of appeal were served within the time and upon the persons prescribed by statute, the exceptions to the refusal to grant the motion to dismiss the appeal must be overruled.

With respect to the exceptions taken to rulings of the Justice of the Supreme Court of Probate upon the admissibility of evidence, we will say as we did in Appeal of Heath, 146 Me. 229, 236, 79 A.2d 810, there quoting Chief Justice Dunn in Appeal of Eastman, 135 Me. 233, 194 A. 586, 588, they are 'Exceptions to rulings excluding evidence, and admitting evidence, detail whereof would promote no serviceable end (and they), are not sustainable. Clearly, no ruling did prejudice to any legal right. Neal v. Rendall, 100 Me. 574, 62 A. 706; Ross v. Reynolds, 112 Me. 223, 91 A. 952.'

This brings us to an examination of the exceptions to the decree of the Justice of the Supreme Court of Probate allowing the will. In the very recent case of Appeal of Heath, supra, we held that the validity of the decree of the Supreme Court of Probate can be challenged before this Court only by exceptions; and that the findings of the Justice of said Court in matters of fact are conclusive if there is any evidence to support them. In that decision we reviewed the authorities supporting these rules and to do so again would be superfluous.

The Justice of the Supreme Court of Probate made the following findings: 'The evidence, offered by the contesting parties, consisting in part of the testimony of the three attesting witnesses, conclusively proves that said decedent on the First day of August 1949 was possessed of testimentary capacity and legally qualified and competent to make and execute his Last Will and Testament, that the same was legally executed, and that there was no undue influence exercised upon him; that the Executor named in said instrument has sufficient business experience to qualify him for said office; that said instrument offered for probate is the duly executed Last Will...