Kenyon v. Saunders

• Decision Date: 22 May 1894
• Citation: 18 R.I. 590,30 A. 470
• Parties: KENYON v. SAUNDERS et al.
• Court: Rhode Island Supreme Court

30 A. 470

18 R.I. 590

KENYON

v. SAUNDERS et al.

Supreme Court of Rhode Island.

May 22, 1894.

Proceedings to probate the alleged will of Susan C. Kenyon, deceased. Prom a judgment admitting the will to probate, George N. Kenyon appealed to the court of common pleas. There was a judgment granting a motion of William G. Saunders and others, executors, to dismiss the appeal, and appellant petitions for a new trial. Petition granted.

George T. Brown and Frederick C. Olney, for appellant.

Nathan B. Lewis, for appellees.

STINESS, J. Susan C. Kenyon died in August, 1893, leaving a will, from the probate of which her husband, George N. Kenyon, appealed. At the time of taking the appeal he was serving a sentence of 15 years' imprisonment in the state prison for the crime of manslaughter, imposed by this court at the March term, 1893, which sentence is still in force. A motion, to dismiss the appeal was granted by the common pleas division on two grounds: First, that said George N. Kenyon was incapacitated, by reason of his sentence and imprisonment to take the appeal, or to sign and seal the appeal bond required by law; and, second, that said George N. Kenyon is not of capacity to administer upon his wife's personal estate, and hence he cannot take the surplus of her estate after payment of her debts, because, no children having been born of the marriage, he has no title by curtesy in the real estate, and cannot take any of the personal estate if it be found that she died intestate. The two questions thus raised are whether the appellant had the right to take an appeal, and whether he has any interest in her property to entitle him to contest the validity of her will. Undoubtedly, under the common law of England, a person convicted of a felony could not maintain an action. This rule was founded upon the reason that as the conviction worked a forfeiture of goods to the crown, he had no longer any property to we for. But under our law (Pub. St R. I. c. 248, § 34) no conviction or sentence for any offense whatsoever works a forfeiture of estate. The reason for the common-law rule does not here exist and an enforcement of it might practically work a forfeiture of estate. Indeed, this case is a plain example of the possibility. Here, assuming the appellant's interest in the estate and the invalidity of the will, he is the party to take an appeal, and it must be taken within 40 days from the probate. If it should be held that his conviction deprives him of the right to appeal, then he would thereby also be deprived of the power ever to enforce his right to the property itself.

Notwithstanding the difficulties which may-attend cases of this kind, such a rule would be contrary to the spirit of the statute, and unsupported by the reason upon which it was originally based. A convict is neither civilly dead nor deprived of his rights of property; and, if this be so, he should be entitled to enforce such right when it is necessary to do so. See Plather v. Sherwood, 6 Johns. Oh. 118; Cannon v. Windsor, 1 Houst. 143; Coal Co. v. Haslett, 83 Ga. 549, 10 S. E. 435; Willingham v. King, 23 Fla. 478, 2 South. 851. The person aggrieved—in this case the husband—is the one who is to claim the appeal, and the statute requires that bond shall then be given to the court of probate to prosecute the appeal or to pay costs. It does not require the appellant to be a party to the bond. But the further question arises in this case, does the fact that the convict is the principal in the bond make it void? If he retains his right of property, it cannot be void upon principle. Does the statute prohibit it? Pub. St R. I. c. 248, § 52, prohibits a convict from making a will or any conveyance of his property or any part thereof during his imprisonment. The giving of an appeal bond is not, strictly speaking, a conveyance of property; on the contrary, it is an attempt to protect and secure property. Still it may be said that the liability under the bond may amount to a disposition pro tanto. But the same liability for costs would follow in an ordinary action without a bond, and so, if the statute is to be construed to prohibit the incurring of liability under an appeal bond, it prohibits equally the incurring of liability by the bringing of a suit, thereby forbidding the convict to sue, and in this way depriving him of the right to secure that which may be his. We do not think that this is the purpose or scope of the statute, and we decide that the bond is not invalid by reason of its execution by said George N. Kenyon.

The next question is whether the appellant had sufficient interest in the estate of his deceased wife to enable him to claim an appeal. The counsel for the appellees correctly says in his brief: "Under the common law the personal estate of the wife became the husband's, and on her death he could administer on her estate, and retain the surplus after paying her funeral charges; and, if another administered, he held the surplus as trustee for the husband." Hoppiss v. Eskridge, 2 Ired. Eq. 54; Whitaker v. Whitaker, 6 Johns. 112; Bryan v. Rooks, 25 Ga. 622; Lee v. Wheeler, 4 Ga. 541; Hoskins v. Miller, 2 Dev. L. 360; Miller v. Miller, 1 J. J....