In re Marston

• Decision Date: 02 February 1887
• Citation: 79 Me. 25,8 A. 87
• Parties: In re MARSTON and another, Petitioners, etc.
• Court: Maine Supreme Court

8 A. 87

79 Me. 25

In reMARSTON and another, Petitioners, etc.¹

Supreme Judicial Court of Maine.

February 2, 1887.

On exceptions by petitioners from supreme judicial court, Somerset county.The opinion states the facts.

D. D. Stewart, for petitioners.

Edmund F. Webb and Appleton Webb,(with whom was Wm. L. Putnam,) for executors.

VIRGIN, J.The petitioners seek, under Rev. St. c. 63, § 25, for leave to enter an appeal from the decree of the judge of probate for this county, whereby an instrument purporting to be the last will of the late Abner Coburn was admitted to probate.

The petitioners contend that the judge did not have jurisdiction of the probate of this instrument because of a legacy of $5,000 therein to Eleanor S Turner, who is the judge's aunt by reason of her marriage, prior to the execution of the instrument, with a brother of the judge's mother; and the, provision of Rev. St. c. 1, § 6, cl. 22, is invoked to sustain the point.

We are of the opinion that that provision, first enacted in the Revision of 1841 for another and entirely different purpose, to-wit, fixing the extreme limit of the disqualification by relationship of those to whom it was intended to apply, can have no possible application to judges of probate; for they were never required by statute to be disinterested by relationship in the estates of deceased persons.On the contrary, whatever may have been the rule at common law, the legislature of this state, when probate courts were first established here, perceiving the great difficulties and confusion which would otherwise necessarily attend the probating of wills and granting administration on the estates of citizens deceased within the several counties, took in hand the whole subject-matter of probate courts,—their jurisdiction and the jurisdiction of the judges,—and enacted a full, complete, and independent code intended to reach every case that could arise; and subsequently made such alterations and additions as experience suggested to meet new or omitted cases.Hence this court has repeatedly said: "Courts of probate are creatures of the statute, having a special and limited jurisdiction only.Fairfield v. Gullifer,49 Me. 360.We must look to the statute for the jurisdiction of such courts in a given case."Fowle v. Coe,63 Me. 248.And now we may add, what we had no occasion to decide then, to-wit: To ascertain whether the judge of probate for a given county has jurisdiction for taking the probate of the will of a deceased inhabitant or resident thereof, we must look to the provisions of Rev. St. c. 63, which contain all of the present law on the subject.And this view is made morally certain by an examination of the legislation on this subject.

Probate courts were first established by statute in 1784. St.Mass.1784, c. 46;Wales v. Willard,2 Mass. 124.The subject was more thoroughly examined by the general court in 1817, and resulted in an act of 45 sections.Section 1 established a probate court in each county, and provided for the appointment of "some able and learned person as judge therein for taking the probate of wills and granting administration on the estates of persons deceased, being inhabitants of or residents in the same county at the time of their decease."St. 1818, c. 190, § 1.Section 5 provided: "Whenever any judge of probate shall be interested in the estate of any person deceased within the county of such judge," the estate shall be settled in another county.And the supreme court decided that, when the judge of probate for the county where a person deceased had jurisdiction of his estate, the acts of any other judge of probate on such estate are void.Cutts v. Haskins,9 Mass. 543;Holyoke v. Haskins,5 Pick. 20.

In 1821, in establishing and defining the jurisdiction of probate courts, and of the judges thereof in this state, the legislature passed an act comprising 75 sections, adopting literally most of the provisions of St.Mass.1818, c. 190, and including the subjects of guardians.But instead of re-enacting a transcript of section 5 of St. 1818, with its simple general provisions,—" whenever any judge of probate shall be interested in the estate of any person deceased within the county of such judge" the estate shall be settled in another county,— our legislature defined specifically the disqualifying interest to be that of an "heir, legatee, creditor, or debtor, or within the degree of kindred which by the laws of the statehe might by any possibility be heir in the estate of any person deceased within the county of such judge."St. 1821, c.21, § 2.And this comprehensive and clearly-defined interest constituted the only exception which precluded or excused a judge of probate from taking the probate of the will of any deceased inhabitant of his county.

To exclude all cavil, the legislature at its next session amended the statute of 1821 by an act of a single section expressed in the positive, unqualified, peremptory language following: "The estates of all persons deceased shall be settled in the probate court of the county where the deceased was last an inhabitant, unless the interest of the judge of probate in such estates, as heir, legatee, creditor, or debtor, shall exceed the sum of $100, any law to the contrary notwithstanding."St. 1822, c. 198.The object of this statute would seem to be both declaratory and amendatory,—to construe the previous statute as to the general jurisdiction, and to fix the minimum limit of personal pecuniary interest which should disqualify a judge of probate.And these provisions of the statutes of 1821 and 1822 remained unchanged, and were in substance put in two sections by the revision commissioners, and re-enacted in Rev. St. 1841, c. 105, §§ 3, 18, the latter containing the provisions as to the disqualifying interest.

In 1841, while the first revision of the statutes was being made, a statute was enacted for transferring to another county the uncompleted settlement of an estate whereof the executor, administrator, or guardian had received the appointment of judge of probate.St. 1841, c. 149, § 1.This provision suggested an additional disqualifying interest not previously covered.A few days thereafter, and to condense and make section 18 of the Revision consistent, the same legislature, by the general "act of amendment" appended to the Revision, provided."Chapter 105, § 18, shall be amended by striking out the words, 'as heir, legatee, creditor, or debtor, or,' and inserting instead thereof,' either in his own right, or in trust, or in any other manner, or be,' so that the section as amended shall be as follows: 'Whenever any judge of probate shall be interested, either in his own right, or in trust, or in any other manner, or be within the degree of kindred by means of which, bylaw he might, by any possibility, be heir to any part of the estate of any person deceased,' such estate shall be settled in another county: 'provided, that the amount of the interest of such judge shall not be less than $100 in such estate.'"Rev. St. 1841, c. 105, § 18, as amended by "act of amendment" of April 14, 1841, c. 105, § 15.

By the foregoing amendment the substituted words "in his own right" obviously included the direct personal interest previously described as that of "an heir, legatee, creditor, or debtor," while "in trust" were evidently intended to cover any indirect, representative interest which the judge might have strictly as trustee, or as executor, administrator, or guardian; and, to make sure of comprising every pecuniary relation of a judge to an estate within his county, the legislature added in the same connection, nosci a sociis,"or in any other manner."The "kindred" clause which immediately follows, and the fixed money limit of interest, make certain this construction.This part of section 18, save the redundant words, has been re-enacted in the several successive revisions, and appears in the plain language now found in Rev. St. c. 63, § S.

Moreover, that the legislatures of 1874 and 1883 believed that the phrase, "in any other manner," had no reference to any interest by "relationship within the sixth decree," appears morally certain from the following considerations: When probate courts were established, and their jurisdiction and that of the judges were defined, in St. 1821, c. 51, their power to appoint guardians in their county was comprised in the same section with that of probating wills and granting administration on estates of deceased persons, (section 1;) and the disqualifying interest mentioned in section 2 was alike applicable to judges, whether acting in relation to estates or to guardians.But in the first revision of the statutes(1841) the provisions relating to guardians were separated from those concerning the estates of deceased persons, and put into different chapters; the latter in chapter 105, and the former in chapter 110.And while chapter 110, § 1, conferred power on a judge of probate to appoint guardians to minors residing in his county, that chapter contained no exception by way of a disqualifying interest.Hence the legislature in 1874 amended the unqualified language of chapter 110, section 1, by adding: "But when any judge is interested, either in his own right, in trust, or in any other manner, or within the sixth degree of kindred, such appointment shall be made in an adjoining county."St. 1874, c. 156.Both of these chapters (Rev. St. c. 63, § 8;Id.c. 67, § 1) were revised by the same learned commissioner and legislative revision committee of 1883, and literally re-enacted by the legislature of that year; and, if the same construction was intended for the disqualifying interest in both sections, they would hardly be expected to express it in such widely different language.

If it be objected that the judge would not be the proper person to try the question (had such been raised) whether or not his aunt, by undue influence, procured the will...