Hewitt's Appeal

Citation1 A. 815,53 Conn. 24
CourtSupreme Court of Connecticut
Decision Date15 December 1885
PartiesHEWITT'S APPEAL.

Lewis E. Stanton and H. S. Barbour, for appellants, Lucy M. Hewitt and others.

Henry C. Robinson and Wm. F. Henney, for appellees.

PARK, C. J. Lucy M. Hewitt was the wife of one Welles, and was living with him as such at the time of his death. He died seized and possessed of real estate in his own right. No provision, by way of jointure, for the support of his wife had been made by Welles before their marriage. No settlement in lieu of dower had been made in her favor in contemplation of marriage. These facts are undisputed in the case. In these circumstances the appellants brought their application to the probate court for the district of Hartford to have dower assigned and set out to Mrs. Hewitt in the real estate of her late husband. The probate court refused the application, and an appeal was taken to the superior court. In that court the appellees filed a cross-complaint, by way of counter-claim and equitable relief, setting forth such facts as would, in a court of chancery, having independent equity powers, estop Mrs. Hewitt from claiming dower in her late husband's estate. And they likewise offered to prove the same facts on the trial of the cause to accomplish that result. The appellants moved the court to strike the cross-complaint from the record; and they further objected to the appellees proving the facts claimed for the purposes sought to be accomplished. The court reserved the questions for the advice of this court.

The principal facts stated in the appellees' cross-complaint, and which they offered to prove, are the following: That an application was made to the probate court for the sale of the lands in which the appellants claim the right of dower; that the application was made at the request of Mrs. Hewitt, one of the appellants; that the court refused to grant the order unless Mrs. H. would relinquish her claim for dower; that she agreed so to do, and the order was thereupon granted; that the lands were sold to the appellees, Mrs. H. receiving a portion of the purchase money in payment of her right of dower; that Mrs. H. was present at the sale, and authorized and directed the auctioneer to state before the sale, in her behalf, that the purchasers would receive a title free from all claim of dower on her part; that such statement was made to the appellees before the sale; that, relying on such representations, the appellees purchased the lands, paying full value for the same, and paying a much larger price than they otherwise would have done.

These are the principal facts of the case; and the question is whether a court of probate, in the settlement of an estate, or otherwise, is vested with equity powers to administer an estoppel in a controversy between the widow, on the one part, regarding her right of dower in her deceased husband's estate, and strangers to the estate, on the other, having no interest whatever in the same except as purchasers of land belonging to the estate?

It is certainly true in this case, if the superior court can entertain the cross-complaint filed in that court, and grant the prayer thereof, that the same could have been done by the probate court, when the cause was before that court, if a similar complaint had there been filed; for the superior court takes the case as it stood before the probate court, and simply determines whether that court erred in its decision or not. If this was not so, this absurdity would exist in many cases: that the probate court erred, and committed no error, at the same time and upon the same question. It committed no error, taking into consideration all the powers and considerations it could possibly exercise and consider; it erred, taking into consideration other powers and considerations beyond its jurisdiction. This would be a state of things which the law would never tolerate, for it would compel the probate court to commit errors in many cases, leaving the parties to get justice through the delay and expense of an appeal to the superior court. But it is unnecessary to consider this question further, for the cases of Davis' Appeal, 39 Conn. 395, and Strong v. Strong, 8 Conn. 408, and many other cases that might be cited, fully establish the doctrine that the superior court, sitting for the trial of this case, takes the place of the probate court, from whence it came, and can do no more than could have been done by that court.

But it is claimed that the practice act authorizes the superior court to entertain jurisdiction of the...

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