In re Stilphen

• Decision Date: 11 April 1905
• Citation: 100 Me. 146,60 A. 888
• Parties: In re STILPHEN.
• Court: Maine Supreme Court

60 A. 888

100 Me. 146

In re STILPHEN.

Supreme Judicial Court of Maine.

April 11, 1905.

Appeal from Supreme Judicial Court, Kennebec County.

Final accounting of A. C. Stilphen as administrator with the will annexed of the estate of Mary Augusta Randall, deceased. From the decree of distribution the administrator, as such and also as assignee of one of the heirs at law, appeals. Appeal sustained.

Argued before WISWELL, C. J., and WHITEHOUSE, STROUT, SAVAGE, POWERS, SPEAR, and PEABODY, JJ., dissenting.

A. C. Stilphen, pro se. George W. Heselton, for appellee.

WHITEHOUSE, J. This is an appeal from a decree of distribution made by the judge of probate of Kennebec county, wherein it was ordered that the sum of $500.59 remaining in the hands of the appellant as administrator with the will annexed on the estate of Mary Augusta Randall, according to the account filed by him, be paid to Mary

D. (White) Dike, of Melrose, Mass., as legatee under the will of the testatrix. The appeal is taken by him in his capacity as administrator, and also as assignee of James

E. White, one of the heirs at law of the deceased.

By agreement of the parties the case is reported for the determination of the law court, as the supreme court of probate. The statute authorizing appeals from decrees of the probate court is as follows:

"Any person aggrieved by an order, sentence, decree or denial, of such judge * * * may appeal therefrom to the Supreme Court to be held within the county, if he claims his appeal within twenty days from the date of the proceeding appealed from." Rev. St. c. 65, § 28. But every one cannot be deemed aggrieved within the meaning of this statute who is dissatisfied with the decree or may happen to entertain desires upon the subject, but only those whose pecuniary interests are directly affected by the decree; those whose rights of property may be established or divested by the decree. Wiggin, Administrator, v. Swett, 6 Mete. 194, 39 Am. Dec. 716; Briard, Aplt., v. Goodale, 86 Me. 100, 29 Atl. 946, 41 Am. St. Rep. 526; Sherer v. Sherer, 93 Me. 210, 44 Atl. 899, 74 Am. St. Rep. 339; Moore v. Phillips, 94 Me. 421, 47 Atl. 913; Abbott, Appeal of, 97 Me. 278, 54 Atl. 755.

It is obvious that an administrator has no pecuniary or personal interests which can be affected by a decree of distribution of funds shown by his account to be in his hands. He has no property rights which can be established or divested by such a decree. It is immaterial to him to whom he is required to pay over such funds, and he cannot be said to be aggrieved by a decree directing him to pay to a legatee rather than to an heir.

But as assignee of the distributive share of one of the heirs at law, it is equally obvious that the appellant has pecuniary interests and property rights which may be directly affected by a decree of distribution. It is accordingly provided by section 34 of chapter 65, Rev. St., that "any person claiming under an heir at law has the same rights as the heir in all proceedings in probate courts including rights of appeal." It is therefore clear that in this case the appeal was properly taken and prosecuted by the appellant, and in his name, as assignee of an heir at law.

Under the reasons of appeal, the only question raised by the appellant is whether the balance of the estate remaining in his hands as administrator on settlement of his account should be paid to Mary D. Dike, as demonstrative legacy, or to be distributed among the heirs, as intestate property.

It has been suggested, however, that whether the legacy to Mary D. Dike was a specific or a demonstrative legacy should have been determined as a preliminary question by the court of equity, and not upon appeal by the supreme court of probate. But we are unable to concur in this view.

Section 7 of chapter 65, Rev. St., declares in the first place that the judge of probate "has jurisdiction of all matters relating to the settlement of such estates."

Section 20 of chapter 67, Rev. St., provides that "when on the settlement of any account of an administrator or executor, there appears to remain in his hands property not necessary for the payment of debts and expenses of administration, nor specifically bequeathed, the judge * * * shall determine who are entitled to the estate and their respective shares therein under the will or according to law, and order the same to be distributed accordingly."

In the case at bar the administrator appears to have accounted for a balance of $500.59 not necessary for the payment of debts, and, finding that it was not specifically bequeathed, the judge of probate ordered it to be paid to Mary D. Dike as legatee under the will of Mary A. Randall. It is difficult to discover any satisfactory reason why the exercise of jurisdiction by the probate court in such a case is not authorized by the plain terms of the statute, and in accordance with the obvious intention of the Legislature. The decree of the probate court is subject to revision on appeal to the supreme court of probate, and a direct and convenient mode of procedure is thus provided for reaching a final decision of the question involved in the settlement of the estate.

This precise question arose in Bryne v. Hume, 86 Mich. 546, 49 N. W. 576, and the jurisdiction of the probate court was sustained by the Supreme Court, although the only basis of probate jurisdiction in such case in that state is found in the following provisions of the statute, viz.: "The judge of probate shall have jurisdiction of all matters relating to the settlement of the estates of deceased persons." How. Ann. St. § 6760. "After the payment of the debts, funeral charges and expenses of administration and after the allowances made for the expense of the maintenance of the family of the deceased * * " and after the assignment to the widow of her dower and of her share in the personal estate," etc., "the probate court shall by a decree for that purpose assign the residue of the estate, if any, to such other persons as are by law entitled to the same." How. Ann. St. § 5964.

In that case the testator bequeathed to his father and mother the sum of $3,500, to be paid out of his "life insurance money as soon as collected." In the opinion the court say: "Whatever this legacy may be called—whether general, specific, or demonstrative—the probate court had jurisdiction to direct, in a proper proceeding, a payment of the legacy, if withheld. We are not satisfied, however, that this was a specific legacy. * * * It is rather in the nature of a demonstrative legacy, which is a pecuniary legacy; the particular fund being pointed out from which it is to be paid. Under such gifts the legatee will not lose the legacy if the fund fail. * * * In this view of the case, the probate court had jurisdiction, in giving construction of the will, over this fund." The court say: "Such power is necessarily involved in the power to assign the estate of a testator on the settlement of an executor's account." So in Glover v. Reid, SO Mich. 228, 45 N. W. 91.

The same doctrine was announced by the court in the Matter of Verplanck, 91 N. Y. 450. It is there said: "The surrogate has jurisdiction over the settlements of the accounts of executors and administrators." And in section 2743, Code Civ. Proc., it is provided that "when an account is judicially settled, as prescribed in this article, and any part of the estate remains, and is ready to be distributed to the creditors, legatees, next of kin, husband, or wife of the decedent or their assigns, the decree must direct the payment and distribution thereof to the persons so entitled, according to their respective rights. As incident to the duty thus cast upon the surrogate, he must have jurisdiction to construe wills, so far as needful, at least, to determine to whom legacies shall be paid." See, also, Smith's Appeal, 103 Pa. 559.

In this state the statute existing at the time of the decision of Hanscom v. Marston, 82 Me. 288, 19 Atl. 460, was superseded by the more definite and comprehensive language of chapter 49, p. 39, of the Laws of 1891, now found in section 20 of chapter 67, Rev. St., as already shown. That decision is therefore no longer to be considered an authority to support the contention that the question here raised is not cognizable by this court as the supreme court of probate.

Whether or not the decree of the probate judge in this case was correct is the question presented by the appeal to the supreme court of probate, and it is a question not entirely free from difficulty.

The first item in the will is as follows: "I direct my funeral expenses and doctor's bills to be paid from the $1,100 now in the hands of my brothers, Charles A. and James D. White of Gardiner, Me. U. S. A." In item second the testatrix gives to Sarah D. Butler a life...