In re Avery

Citation167 A. 544,117 Conn. 201
PartiesIn re AVERY. In re STARR'S ESTATE.
Decision Date18 July 1933
CourtSupreme Court of Connecticut

Appeal from Superior Court, Middlesex County; Edwin C. Dickenson Judge.

Proceedings in the matter of the estate of Ellen S. Starr, deceased wherein the court of probate approved, allowed, and admitted to probate an instrument as the last will and testament of the decedent, and revoked the appointment, previously made of Harley H. Avery, as administrator of the estate. On the administrator's appeal to the superior court from the court of probate, a motion of Henry S. Starr that the appeal be erased from the docket was granted, and the administrator for appeals.

No error.

George E. Beers and William L. Beers, both of New Haven, for appellant.

Wallace W. Brown, of Hartford, for appellee.

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

HINMAN, Judge.

On January 5, 1932, the court of probate for the district of East Hampton approved, allowed, and admitted to probate an instrument as the last will and testament of Ellen S. Starr, and, under section 4900 of the General Statutes, revoked the appointment, previously made, of Harley H. Avery as administrator of the estate. Thereupon he brought an appeal based upon section 4900 of the General Statutes, which allows " any person aggrieved by any order, denial or decree of a court of probate in any matter, unless otherwise specially provided by law" to appeal therefrom to the superior court. Henry S. Starr filed, and the court granted, a motion that the appeal be erased from the docket on the ground that the appellant had no interest in the decrees appealed from which rendered him aggrieved by them within the meaning of the statute. As the appeal is taken as administrator of the estate of the decedent, the appellant was not required to set forth his interest further (Gillette's Appeal, 82 Conn. 500, 501, 74 A. 762), and, since his, claimed interest thus sufficiently appears on the record, no proof is required, and a motion to erase was the appropriate remedy. (Murphy v. Elms Hotel, 104 Conn. 351, 354, 133 A. 106).

The issue presented by the appeal to this court is whether a person removed as administrator because of the admission to probate of an instrument found by the court of probate to be the last will and testament of the deceased is " aggrieved" within section 4990 by the decree admitting the will to probate and revoking his appointment as administrator. One who has a pecuniary interest which the decree affects injuriously is within the statute. Woodbury's Appeal, 70 Conn. 455, 456, 39 A. 791; Norton's Appeal, 46 Conn. 527; Dickerson's Appeal, 53 Conn. 223, 10 A. 194, 15 A. 99. Also one who acts in a representative capacity by which he is charged with certain duties, such as caring for and managing an estate and protecting it against unjust claims in the interest of all concerned, is clothed with power to perform them, and, in appropriate instances, is held to have such an interest as entitles him to appeal from probate decree. Woodbury's Appeal, supra, page 457 of 70 Conn., 39 A. 791. For example, Hewitt's Appeal, 58 Conn. 223, 20 A. 453, recognizes the right of an executor to appeal from a decree authorizing a transfer of a portion of the estate in his hands to a foreign trustee. In Gillette's Appeal, 82 Conn. 500, 74 A. 762, it was held that the administrator might appeal from the allowance by commissioners of a claim against the estate. " As administrator, Gillette represented the parties interested in the estate, and it was his duty to resist unfounded claims against the fund in his hands." In Davis' Appeal, 39 Conn. 395, and Lockwood v. Reynolds, 16 Conn. 303, the right, therein exercised, of an administrator to appeal from decrees extending the time for presenting claims against the estate, was not questioned. On the other hand. Woodbury's Appeal, supra, held it to be no part of the duty of a trustee in insolvency to appeal from refusal of the court of probate to grant his application for an extension of time for presentation of claims, observing that in appeals from orders extending the limitation the trustee acts in the interest of the debtor and of all the creditors whose standing as such has been established, but a further claimant has ample power to protect his own rights, including the securing of extension of time to present his claim, " and we see no good reason why he should call upon the trustee to do this for him at the expense of others." Page 459, of 70 Conn., 39 A. 791, 793.

It is also the duty of the executor in a will to present it for probate and endeavor to procure its admission, and this includes a right of appeal from a decision of the Court of Probate refusing to admit it; however, it is no part of his duty to attack or take ground against its validity. Belfield v. Booth, 63 Conn. 209, 309, 27 A. 585; Cleaveland, Hewitt & Clark, Probate Law and Practice, p. 483. Cases in other states which are relied on by the appellant go no further in principle. Marshall v. Pogue, 226 Ky. 767, 769, 11 S.W.(2d) 918, sustained the right of executors named in a will to defend its validity as against an instrument claimed to be a subsequent will. To the same effect is in re Horace Greeley's Will (N. Y.) 15 Abb. Prac. (N. S.) 393. In re Bernheim's Estate, 82 Mont. 198, 266 P. 378, 57 A.L.R. 1169, upholds the right of an executor to defend an action brought to revoke the probate of the will and have it declared void. See, also, 3 Woerner on Administration (3d Ed.) p. 1876. In Connelly v. Sullivan, 50 III. App. 627,...

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    • United States
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    • 28 December 2010
    ... ... See Reilly v. Pepe Co., 108 Conn. 436, 443, 143 A. 568 (1928) (equity pleading usage); Ragali v. Holmes, 111 Conn. 663, 664, 151 A. 190 (1930) (same); Avery's Appeal, 117 Conn. 201, 202, 167 A. 544 (1933) (same); State v. Boucher, 119 Conn. 436, 442, 177 A. 383 (1935) (same); New Haven Loan Co. v. Affinito, 122 Conn. 151, 153, 188 A. 75 (1936) (same); Hubbard v. Planning Commission, 151 Conn. 269, 272, 196 A.2d 760 (1963) (notice); Douglas v ... ...
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