Hall v. Burgess
| Decision Date | 13 June 1917 |
| Docket Number | No. 5043.,5043. |
| Citation | 100 A. 1013,40 R.I. 314 |
| Parties | HALL v. BURGESS et al. |
| Court | Rhode Island Supreme Court |
Exceptions from Superior Court, Providence and Bristol Counties; Charles F. Stearns, Judge.
Petition by Nelson R. Hall, administrator, against John E. Burgess and others. A probate court dismissed the petition and from the superior court's action dismissing an appeal therefrom, the administrator excepts. Exception sustained, decree of superior court reversed, and cause remanded.
Champlin & Harris, of Providence (John Courtland Knowles, of Providence, of counsel), for appellant. William H. McSoley, of Providence, for appellees.
This case is before us upon the appellant's exception to the decision of the superior court dismissing the appellant's appeal from a decree of the probate court of the town of Warren.
Nelson R. Hall, administrator of the estate of Sarah W. Hall, late of the town of Warren, deceased, petitioned the probate court of that town for permission to pay to the South Cemetery Corporation a sum not exceeding $100 for the perpetual care of the burial lot in which the body of said Sarah W. Hall was interred. This petition was presented to said probate court in accordance with the provisions of section 4 of chapter 318 of the General Laws of Rhode Island 1909, which said section reads in part as follows:
The petition was heard by the probate court of the town of Warren, and an order or decree was entered denying and dismissing the same. The administrator took an appeal to the superior court, where the respondents filed a motion to dismiss. This motion was heard and a decision was rendered by the superior court dismissing the appeal, and a decree was entered in accordance therewith. The case is now before us on the plaintiff's exception to this decision.
The question presented for our consideration is: Has a probate court jurisdiction to deny the petition of an administrator of a solvent estate, asking for permission to pay to a cemetery corporation a reasonable sum for the perpetual care of the lot in which the body of his intestate is buried? It does not appear to be disputed that the estate of Sarah W. Hall was solvent; that the South Cemetery Corporation was an existing cemetery corporation transacting the business for which it was incorporated; that the body of Sarah W. Hall was buried in a lot in said cemetery, or that the sum sought to be appropriated for perpetual care was reasonable.
The statute provides that an administrator of a solvent estate may pay to a cemetery corporation a reasonable sum for the perpetual care of the lot in which the body of his intestate is buried, and that the probate court may determine, after notice, the amount of such payment and to whom the same shall be paid.' We think that under the statute it was the duty of the probate court in this case to determine the amount of the payment and to whom the same should be paid, and that it was without jurisdiction to simply deny and dismiss the petition without taking the action which the statute contemplates.
The appellee contends that the administrator having seen fit to petition the probate court for permission to pay the cemetery company a certain sum of money for perpetual care, and the probate court, after hearing the evidence, having denied and dismissed the petition, that such action of the probate court is final and cannot be appealed from, and he cites in support of such contention Kenyon v. Kenyon, 31 R. I. 270, 76 Atl. 798. If the probate court had entered a decree fixing the amount and determining to whom it should be paid it would have been acting within the scope of its powers as defined by the statute, and it might then be argued that such action was conclusive. The probate court, however, did not so act, but in effect denied the right of the appellant to pay to any corporation any sum of money for perpetual care.
The case of Kenyon v. Kenyon, supra, is, we think, readily distinguishable from the case at bar. In that case the administrator filed an account in which appeared two items, one relating to a monument to be placed at the grave of the decedent, and the other to the perpetual care of the lot in which the decedent was buried. This lot was on the family farm. There was no petition under the statute requesting that the amount be fixed for perpetual care and for the designation of some corporation, town, or city to whom the amount when fixed should be paid. The administrator desired the probate court...
To continue reading
Request your trial
-
Matunuck Beach Hotel, Inc. v. Sheldon
...(1908); Cf. Vermette v. Cirillo, 114 R.I. 66, 328 A.2d 419 (1974); Roullard v. McSoley, 54 R.I. 232, 172 A. 326 (1934); Hall v. Burgess, 40 R.I. 314, 100 A. 1013 (1917) (cases holding that the administrator or executor of an estate comes within the Tillinghast rule because of injury suffere......
-
Hassell v. Zoning Bd. of Review of City of East Providence
...sense requires '* * * an actual and practical, as distinguished from a mere theoretical, interest in the controversy,' Hall v. Burgess, 40 R.I. 314, 319, 100 A. 1013, 1015, and it results when the judgment whose review is sought adversely affects in a substantial manner a personal or proper......
-
Jeffrey v. Platting Bd. of Review of Town of South Kingstown
...nominal, citing Tillinghast v. Brown University, 24 R.I. 179, 52 A. 891; Greene v. Willis, 47 R.I. 251, 132 A. 545, and Hall v. Burgess, 40 R.I. 314, 100 A. 1013. In those cases this court held that a grievance exists only when the wrong asserted acts to deny a personal or property right or......
-
Agnew v. Agnew
...18 Wash. 101, 50 P. 021; In re Forney’s Estate, 44 Nev. 279, 194 P. 332; Denison v. Jerome, 43 Colo. 456, 96 P. 166, 168; Hall v. Burgess, 40 RI 314, 100 A. 1013. Respondent contends, however, that this court, in Schlegel v. Sisson, 66 N.W. 1087, has determined this question against appella......