Knapp's Estate, In re

• Decision Date: 09 June 1950
• Citation: 145 Me. 189,74 A.2d 217
• Parties: In re KNAPP'S ESTATE.
• Court: Maine Supreme Court

Page 217

74 A.2d 217

145 Me. 189

In re KNAPP'S ESTATE.

Supreme Judicial Court of Maine.

June 9, 1950.

John G. Marshall, Auburn, Frank T. Powers, Lewiston, for appellant.

James E. Philoon, Auburn, Carl F. Getchell, Lewiston, John C. Crockett, Lewiston, George C. Wing, Jr., Auburn, for respondents.

Before MURCHIE, C. J., and THAXTER, FELLOWS, MERRILL, NULTY, and WILLIAMSON, JJ.

FELLOWS, Justice.

This case is before the Law Court on exceptions by the appellant to the ruling of the Superior Court, sitting as the Supreme Court of Probate, in refusing to revoke certain decrees of the Probate Court for Androscoggin County. The exceptions are overruled.

These are the facts: Fred E. Knapp, late of Auburn, Maine, deceased, testate, died November 17, 1944 leaving a widow, Lida A. Knapp, and as his only heir at law, his brother Roy C. Knapp who is the appellant petitioner here.

The will of Fred E. Knapp provided a life estate for the wife, with remainder to the Salvation Army, Stanton Bird Club, and the Society for Prevention of Cruelty to Animals. The will was presented for probate November 21, 1944, due notice was given to all parties interested and no objections to the probate were made. December 12, 1944 was the return day, and the petition for probate was in order for hearing on that date. Forest E. Luddon, as one of the subscribing witnesses to the instrument, made an affidavit before Donat J. Levesque, Register of Probate, on December 6, 1944. The Luddon affidavit was offered as evidence on December 12, 1944, and the will was allowed on December 12, 1944.

More than four years after allowance of the will, on March 21, 1949 the appellant, Roy C. Knapp, as sole surviving heir at law, filed a petition in the Probate Court for Androscoggin County stating that 'the witness' affidavit in support of the allowance of said will of said late Fred E. Knapp was taken before the term of the Probate Court to which the petition for allowance was returnable and that to allow said will would be contrary to the Rules of the Probate Court,' and the petitioner asked for revocation of the order and decree allowing the will, the revocation of decree allowing the first and final account, and revocation of decree for distribution.

This petition of Roy C. Knapp was denied by Armand A. Dufresne, Jr., Judge of Probate, on September 26, 1949. The petitioner appealed to the Superior Court as the Supreme Court of Probate, which court on January 16, 1950 'denied and dismissed' the appeal. The petitioner then filed the exceptions now before the Law Court.

Rule XXXI of the Probate Court, 130 Me. 534, is as follows: 'Wills must in every case be proved and allowed in open court, and in case the testimony of the witness or witnesses proving the will is not taken down by the court stenographer and certified, the testimony shall be preserved by an affidavit taken before the Judge or Register, and filed with the other papers in the case, and in no case shall evidence be taken out to prove said will before the return day of the petition for probate thereof.'

This Rule XXXI of Practice and Procedure in the Probate Courts of Maine was adopted in 1931 under the authority of Revised Statutes 1930, Chapter 75, Section 48; Revised Statutes 1944, Chapter 140, Section 49; Rules of Probate Court, 130 Me. 527, 534. A rule has the force of law and is binding upon the Court, as well as upon parties, 'if not repugnant to law.' Fox v. Conway Fire Ins. Co., 53 Me. 107, 110; Cunningham v. Long, 125 Me. 494, 135 A. 198; Nickerson v. Nickerson, 36 Me. 417; Maberry v. Morse, 43 Me. 176; Hill v. Finnemore, 132 Me. 459, 471, 172 A. 826; 'Courts' 14 Am.Jur., 355, Section 150-152. The rule cannot change a statute. The statute controls. Nissen v. Flaherty, 117 Me. 534, 105 A. 127; 21 C.J.S., Courts, §§ 170-172, p. 260, citing Nissen v. Flaherty.

The statute relating to practice and procedure in proving a will where (as in this case) there are no objections, is as follows: 'When it clearly appears to the judge by the written consent of the heirs at law or otherwise that there is no objection thereto, he may decree the probate of any will upon the testimony of one or more of the 3 subscribing witnesses required by law, who can substantiate all the requisite facts, and the affidavit of such witness or witnesses taken before the register of probate may be received as evidence; or, in the cases described in the preceding section, upon the depositions of one or more of the subscribing witnesses, substantiating the facts.' Revised Statutes 1944, Chapter 141, Section 7.

A Probate Court may, of course, vacate or annul a prior decree, upon petition therefor, which is clearly shown to be without foundation in law or in fact, or wrongfully obtained without legal evidence produced in court. When the statute provided (as it formerly did) for regular terms of court in the Probate Court, for example, the Judge had no authority to hear evidence in vacation. Merrill Trust Co. v. Hartford, 104 Me. 566, 72 A. 745, 129 Am.St.Rep. 415. Probate courts are but creatures of statute and have special and limited jurisdiction. They have no jurisdiction and no powers except such as are derived from statute. The course of proceedings prescribed by law must be complied with to give jurisdiction. Appeal of Waitt, 140 Me. 109, 34 A.2d 476. See analogy by Chief Justice Cornish in Case of Conners, 121 Me. 37, 41, 115 A. 520.

The petitioner claims, in this case, that the Probate Court had no jurisdiction to make the decree of December 12, 1944 allowing the decedent's will, because he says the affidavit of the subscribing witness was signed before the Register on December 6, 1944, and that this decree of December 12, 1944 was void, and all the succeeding decrees are void.

It was stipulated and agreed that the petitioner had notice 'in time to appear and object to the allowance of the will.' There was no appearance and no objections. The Probate docket further shows a claim filed by the estate of Lida A. Knapp, the executrix widow, and life tenant, and the appointment of Oral E. Holmes as administrator d. b. n. c. t. a., and that distribution was ordered and final accounts allowed.

The attorneys representing the administrator c. t. a. and the residuary legatees maintain, with reason, that the statute controls, that the rule does not conflict with the statute, and that the records here show no violation of the statute or the rule.

The statute contemplates the testimony of one or more of the subscribing witnesses (or a deposition) to be sufficient when there is no objection raised to the probate of a will. The statute further contemplates, when no objection to the probate, that the proponent may offer for evidence the affidavit of a subscribing witness taken before the Register. The affidavit becomes and is evidence by virtue of the statute. No time is stated in the statute as to when the affidavit may be made before the Register. It must, of course, be made before it is offered, and before it becomes statutory evidence. It may be made sometime before the coming in of the court on return day, because the court return day does not commence until the hour for the court to come in. There is nothing to prevent the making of the affidavit with the Register at any time after the petition for probate is filed and before the return day. It cannot be used if there are objections to the probate of the will, and it is not evidence if there are objections. There is no necessity for an affidavit to be taken before the Register, when the court is in session, on or after return day, because the rule then permits the Judge of Probate as well as the Register, to take an affidavit...