Martin's Estate, In re, 4494
| Decision Date | 14 June 1966 |
| Docket Number | No. 4494,4494 |
| Citation | 415 P.2d 319,49 Haw. 304 |
| Parties | , 49 Haw. 310 In the Matter of the ESTATE of Emma MARTIN, also known as Emily Martin and Emilie Martin, Deceased. |
| Court | Hawaii Supreme Court |
Syllabus by the Court
1. Section 208-3, R.L.H.1955 provides that a Notice of Appeal from a decision, judgment, order or decree of a circuit judge in chambers shall be filed within ten days after the filing of the decision, judgment, order or decree appealed from. A Notice of Appeal not filed within the statutory time is invalid and upon motion will be dismissed.
2. Rule 6(c) of the Circuit Court of the First Circuit permits a party who has been prejudiced by failure to receive due notice of an order of probate to apply to the court for appropriate relief. A party seeking to appeal cannot assert prejudice when his application for relief was submitted more than ten days after receiving notice of the filing of the Order of Probate.
C. A. Gregory, Smith, Wild, Beebe & Cades, Honolulu, for appellant.
Robert M. Rothwell, Hoddick, Rothwell & Chang, Honolulu, for respondent.
Before RICHARDSON, C. J., and CASSIDY, WIRTZ, LEWIS and MIZUHA, JJ.
The executor, Bishop Trust Company, appellant in this court, successfully defended an action contesting the validity of the will of its testatrix, Emily Martin, in Probate Court, and maintains here that the contestants, appellees here, lost their right to appeal to the circuit court on the issue of the validity of the will because they failed to effectuate their appeal under the rules prescribed by our statutes. 1
The petition for probate of the will, executed on July 26, 1962, was filed in the Probate Court on April 25, 1963, and the caveat contesting probate of the will was filed May 23, 1963. After hearings in chambers, the Probate Court admitted the will to probate. The following is a chronology of the subsequent events pertinent to this interlocutory appeal:
May 19, 1964 The Probate Court filed its 'FINDINGS OF FACT and CONCLUSIONS OF LAW.'
May 22, 1964 The Probate Court filed its formal Order of Probate based on the above noted 'FINDINGS'. Service of this Order was not made on Contestants.
June 2, 1964 Contestants filed their Notice of Appeal from the 'FINDINGS OF FACT and CONCLUSIONS OF LAW.'
August 11, 1964 The Executor moved 'at chambers' 'in probate' to dismiss the appeal on the grounds:
'1. That said notice of appeal was not filed within the proper time.
September 3, 1964 Contestants filed a Return to the Motion to Dismiss alleging that an oral stipulation had been made between counsel that any final order would be submitted for Contestants' approval. 2
September 14, 1964 Contestants at the suggestion of the Circuit Judge, applied for relief under Rule 6(c) 3 of the First Circuit alleging in an affidavit that, contra to an agreement between counsel, the executor had failed to notify the contestants of the Order of Probate and as a result they had failed to appeal within the proper time.
September 22, 1964 Return to application for Relief filed by the executor.
January 27, 1965 The Probate Court dismissed both the Appeal and Application for Relief under Rule 6(c) because neither was an appeal from, nor an attempt to appeal from, the final Order of Probate.
February 5, 1965 Contestants filed an amended Application for Relief under Rule 6(c) to set aside the January 27, 1965 Order and to permit the filing of a Notice of Appeal from the final Order of Probate admitting the alleged will of Emily Martin.
March 3, 1965 Order granting Amended Application for Relief filed.
March 12, 1965 Interlocutory appeal allowed the executor, who had protested the granting of the amended Application for Relief.
March 16, 1965 Executor filed Notice of Appeal from Order of March 3, 1965.
Contestants' 'Notice of Appeal' to the circuit court filed on June 2, 1964, was an appeal from the Findings of Fact and Conclusions of Law, 14 days after the entry of the findings on May 19, 1964. Contestants did not file a Notice of Appeal from the Order admitting the will to probate until the amended application for relief was granted. An appeal must be taken from the final Order of Probate and not the Findings of Fact and Conclusions of Law. Estate of Mansbridge, 29 Haw. 73, 78. See Ching v. Tong, 39 Haw. 20, 22; Ogata v. Ogata, 30 Haw. 620; Makainai v. Lalakea, 24 Haw. 518; Mutch v. Holau, 5 Haw. 314, 315.
Compliance with statutory requirements for the taking of an appeal is mandatory. Estate of Amasiu, 36 Haw. 394. See Scott v. Liu, 46 Haw. 221, 377 P.2d 696. Contestants' Notics of Appeal from the Findings of Fact and Conclusions of Law was not only untimely-it was a nullity.
Nevertheless, contestants argue in this court that prejudice occurred, rectifiable under Rule 6(c), because counsel for the executor had inadvertently breached his promise to notify them of the filing of the final Order of Probate and, as a result, they were entitled to relief. We do not agree. Assuming but not deciding that counsel for contestants had no duty to check with the Probate Court, it would be true that contestants were prejudiced until such time as their counsel received notice of the Order of Probate which at the latest occurred on August 11, 1964, when the executor filed his motion to dismiss the appeal from the Findings of Fact and Conclusions of Law. It then became incumbent on contestants to act promptly to seek relief under Rule 6(c). In view of the limitation on the time allowed for appeal to the circuit court, the application for such reief should have been made within the same ten-day limitation. On the stated hypothesis, the plea of prejudice therefore lost its effectiveness ten days after the contestants received notice that the Order of Probate was filed through the motion to dismiss filed on August 11, 1964. The first application...
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