Letendre v. R.I. Hosp. Trust Co., 890.

• Decision Date: 23 July 1948
• Docket Number: No. 890.,890.
• Citation: 60 A.2d 471
• Parties: LETENDRE et al. v. RHODE ISLAND HOSPITAL TRUST CO.
• Court: Rhode Island Supreme Court

60 A.2d 471

LETENDRE et al.

v.RHODE ISLAND HOSPITAL TRUST CO.

No. 890.

Supreme Court of Rhode Island.

July 23, 1948.

Appeal from Probate Court of Woonsocket.

Proceeding by the Rhode Island Hospital Trust Company, executor of the estate of Joseph E. Kelly, on a claim against Dolores I. Letendre and another, administrators cum testamento annexo of the estate of John F. Letendre. From a decree of the probate court allowing the executor to file the claim out of time, the administrators appeal, the executor files a motion to dismiss the appeal, and the administrators file a motion for permission to file a summary of the evidence nunc pro tunc.

Motion to permit filing of summary of evidence nunc pro tunc denied, and motion to dismiss the appeal granted and the cause remanded.

Raymond J. McMahon and Raymond J. McMahon, Jr., both of Providence, for appellants.

Tillinghast, Collins & Tanner, Harold B. Tanner and Westcote H. Chesebrough, all of Providence, for appellee.

FLYNN, Chief Justice.

This is an appeal from a decree of the probate court of Woonsocket allowing the executor of the estate of Joseph E. Kelly, the appellee, to file a claim against the administrators c. t. a. of the estate of John F. Letendre, the appellants, out of time in accordance with the second proviso of General Laws 1938, chapter 578, § 3, as amended. The cause is before us upon the motion of the appellee to dismiss such appeal, which was taken directly to this court in reliance upon rule 23 of the Supreme Court, approved February 19, 1934.

The proceeding began with the filing by the appellee of a petition for leave to file a claim against the estate of John F. Letendre out of time under the second proviso of G.L.1938, chap. 578, § 3, as amended by P.L.1941, chap. 1003, sec. 2. After due notice and hearing on the petition a decree allowing the filing of such claim was entered in the probate court of Woonsocket on August 14, 1947. Later, on August 20, 1947, the claim was disallowed by the appellants. From the decree allowing the filing of that claim the appellants on September 15, 1947, within forty days from the entry thereof, filed in said probate court a claim of appeal and requested a certified copy of such claim and a record of the proceedings from which they appealed.

On September 30, 1947, within fifty days from the entry of said decree, the appellants filed in this court their claim and reasons of appeal, but they did not file as part of the certified record any transcript or approved summary of the evidence upon which the probate court had acted in allowing the appellee to file the claim. No transcript of evidence was made; and no summary was presented to the probate judge for approval until after the expiration of fifty days from the date of entry of the decree in question. The probate judge was then available because his sudden death in an automobile accident did not occur until October 8, 1947. That was five days after the expiration of the fifty-day period within which the claim of appeal and approved summary of the evidence as part of the record were required to be filed in this court according to the provisions of rule 23.

The appellee then moved to dismiss the appeal on the grounds: (1) That rule 23, permitting an appeal directly to this court from a probate decree entered under the second proviso of G.L.1938, chap. 578, § 3, is no longer effective because of the amendment of that section by P.L.1941, chap. 1003, sec. 2; and (2) that if such rule is held to be in effect the appellants have not filed an approved summary of the evidence taken at the hearing in the probate court, which summary is made a part of the record of proceedings required by that rule to be certified and filed within fifty days from the date of the entry of the decree. The appellee further contends that even if rule 23 is found to have been complied with substantially, the appeal nevertheless should be dismissed because such sule was not within the proper exercise of judicial power, and therefore was invalid from the beginning.

The appellants, following the filing of the appellee's motion to dismiss the appeal, then filed a motion that this court permit the filing of the summary of evidence nunc pro tunc so as to fulfill the requirements of rule 23. In the alternative they contend that this court should accept the evidence referred to in the rescript of the probate judge as a substantial compliance with the rule so far as it relates to filing an approved summary of the evidence. They also argue that the rule-making power is inherent in this court; that rule 23 was a valid exercise of judicial power and not an invasion of the legislative function; and that such rule has never been repealed expressly by any rule of this court or by statute.

The issues thus presented involve G.L.1938, chap. 578, § 3; P.L.1941, chap. 1003, sec. 2; and rule 23 of the supreme court, approved February 19, 1934. Section 3 of chap. 578, reads in part as follows:

‘All persons having claims * * * against the estate of a deceased person shall file statements of their claims in the office of the clerk of the probate court. * * * Claims not filed within one year from said publication shall be barred: Provided, that a creditor who, by reason of accident, mistake or unforeseen cause, has bailed to file his claim may, at any time before distribution of the estate, file his claim, which claim, if allowed, shall be paid out of assets remaining in the hands of the executor or administrator; provided, also that a creditor who, by reason of any other cause, has failed to file his claim, may, at any time, before the distribution of the estate, petition the probate court for leave to file his claim, and the probate court, after notice to the executor or administrator of the estate, and a hearing on said petition, may, in its discretion, grant leave to file such claim upon such terms, if any, as said court shall prescribe, which claim, if allowed, shall be paid out of the assets remaining in the hands of the executor or administrator.’

That section was amended by P.L.1941, chap. 1003, sec. 2, and reads in part as follows:

‘All persons having claims * * * against the estate of a deceased person shall file statements of their claims in the office of the clerk of the probate court. * * * Claims not filed within 6 months from said publication shall be barred: Provided, that a creditor who, by reason of accident, mistake or any other cause, has failed to file his claim, may, at any time, before the distribution of the estate, petition the probate court for leave to file his claim, and the probate court, after notice to the executor or administrator of the estate, and a hearing on said petition, may, in its discretion, grant leave to file such claim upon such terms, if any, as said court shall prescribe, which claim, if allowed, shall be paid out of the assets remaining in the hands of the executor or administrator.’

Rule 23, which was promulgated by this court February 19, 1934, reads:

‘All appeals from an order or decree of a probate court granting or denying leave to file a claim against the estate of a deceased person under the second proviso of section 3, chapter 365, (now G.L.1938, chap. 578) shall be taken...