Hennessy v. Denihan

• Decision Date: 03 March 1930
• Citation: 149 A. 250,110 Conn. 646
• Court: Connecticut Supreme Court
• Parties: HENNESSY v. DENIHAN.

149 A. 250

110 Conn. 646

HENNESSY v. DENIHAN.

Supreme Court of Errors of Connecticut.

March 3, 1930

Appeal from Superior Court, Litchfield County; Carl Foster, Judge.

Proceeding by Michael Hennessy, administrator of the estate of James Hennessy, deceased, opposed by Alice Denihan, administratrix of the estate of Mary McGuire, deceased, to reopen probate decree.From a judgment of the superior court dismissing appeal from an order and decree of the probate court denying petition, plaintiff appeals.

No error.

Mary McGuire, late of Torrington, died on or about January 15 1926, leaving a written instrument purporting to be her last will and testament, in which James Hennessy of Cappawhite, Irish Free State, was named as the sole devisee legatee, and executor.On April 24, 1926, James Hennessy through counsel presented to the probate court for the district of Torrington for probate the instrument purporting to be the last will and testament of Mary McGuire, and on March 12, 1927, the probate court, after due notice and hearing, all interested parties being present in person or by counsel, adjudged that the instrument was not the last will and testament of Mary McGuire.After the hearing in the probate court, but before March 12, 1927, James Hennessy died at Cappawhite, Irish Free State.On March 12, 1927, neither the probate court nor counsel engaged in the matter knew of Hennessy's death, and on April 12, 1927, counsel who had acted for him, being still ignorant of his death, presented to the probate court an appeal from its decree which was allowed and was returnable to the superior court on the first Tuesday of June, 1927, but was never returned to that court.Michael Hennessy was appointed by the court having jurisdiction over the estate of James Hennessy administrator upon his estate and as such administrator, on June 13, 1927, filed a petition in the probate court for the district of Torrington praying that the court open its judgment decreeing that the instrument purporting to be the last will and testament of Mary McGuire was not her last will and testament, that he might be substituted for James Hennessy named as executor in that instrument, and that he might be heard upon the matter of its admission to probate.The probate court denied the petition, and he appealed to the superior court, which dismissed his appeal.

John J. Dwyer, of New York City, for appellant.

Samuel A. Herman, of Winsted, for appellee.

Argued before WHEELER, C.J., and MALTBIE, HAINES, HINMAN, and BANKS, JJ.

BANKS J.(after stating the facts as above).

Our statute(Gen. St. § 6177) provides that (with certain exceptions not here involved) no cause or right of action shall be lost or destroyed by the death of any person, but shall survive in favor of his executor or administrator, who may enter and prosecute within six months thereafter, and we have held that the statute applies to appeals from probate.Stiles Appeal from Probate, 41 Conn. 329.James Hennessy sole legatee and executor under the will of Mary McGuire, had presented to the probate court of Torrington an application for the probate of her will.Upon his death pending such proceeding, his executor or administrator could have entered and prosecuted it.He died after the hearing which was held upon his application.Had the court known of his death, it could still have entered its decree nunc pro tunc, dating it back to a day subsequent to the hearing and prior to the date of his death to avoid the anomaly of entering a judgment against a person who was dead.Collins v. Prentice,15 Conn. 423;Brown v. Wheeler,18 Conn. 199;Finch v. Burr,79 Conn. 682, 686, 66 A. 504, 10 L.R.A. (N. S.) 1049;1 Freeman on Judgments(5th Ed.) § 122;1 Black on Judgments(2d Ed.) § 127.The court, however, in ignorance of the death of James Hennessy, entered its decree on March 12th, which was subsequent to the date of his death, from which decree his attorney, also in ignorance of his death, took an appeal to the superior court, which appeal was not entered in that court; counsel having in the meantime learned of Hennessy's death.The decree of the probate court was not rendered void because of the fact that Hennessy had died before it was entered.His death did not deprive the court of jurisdiction and the judgment thereafter rendered was merely irregular." Forms of proceeding for the accomplishment of justice, whether through the use of a legal fiction or of particular kinds of judicial processes are but means to an end.They are not so essential to its attainment that every departure from them makes what is done a nullity."Finch v. Burr, supra, page 686 of 79 Conn., 66 A. 504, 505.This decree of the probate court was, unless and until it was set aside in some appropriate proceeding, a valid subsisting judgment.Finch v. Burr, supra;Reid v. Holmes,127 Mass. 326;Martin v. Wagner,124 Cal. 204, 56 P. 1023;Jefferson v. Hicks,33 Okl. 407, 126 P. 739, 41 L.R.A. (N. S.) 1053;New Orleans v. Gaines,138 U.S. 595, 612, 11 S.Ct. 428, 34 L.Ed. 1102;Mitchell v. Schoonover,16 Or. 211, 17 P. 867, 8 Am.St.Rep. 282;1 Black on Judgments(2d Ed.) § 200;1 Freeman on Judgments(5th Ed.) § 122.The probate court, upon being informed of the death of James...