Oarr v. Railton

• Decision Date: 06 March 1941
• Docket Number: No. 8264.,8264.
• Citation: 18 A.2d 646
• Parties: OARR et al. v. RAILTON et al.
• Court: Rhode Island Supreme Court

18 A.2d 646

OARR et al.

v. RAILTON et al.

No. 8264.

Supreme Court of Rhode Island.

March 6, 1941.

Reargument Denied May 2, 1941.

CONDON, J., dissenting in part.

Exceptions from Superior Court, Providence and Bristol Counties; Herbert L. Carpenter, Judge.

Petition by Thomas Carr and others against Bertha C. Railton, administratrix with the will annexed, and others, for construction of the will of George Albert Carr, wherein petitioners appealed to the superior court from an adverse decree of the probate court. On exceptions by Bertha C. Railton, administratrix with the will annexed, and others to decisions of the superior court. Exceptions overruled and case remitted.

William S. Flynn, Stephen A. Fanning, and Christopher J. Brennan, all of Providence, for appellants.

Joseph T. Witherow, of Pawtucket, for appellees.

MOSS, Justice.

This is a probate appeal from a decree of the probate court of the city of Pawtucket, entered on November 30, 1938, in the matter of the estate of George Albert Carr, late of Blackpool, England, who died there, testate, on November 20, 1935. His will was duly admitted to probate by the English court having jurisdiction, and his first cousin Mary Agnes Almond was duly appointed by that court as sole executrix of his will.

The appellants are the sole heirs at law and next of kin of the testator, according to the laws both of this country and of England. The first appellee is the administratrix, with the above will annexed, of his estate in Rhode Island, duly appointed as such administratrix by the above-named court of probate, upon the petition of Mary Agnes Almond, executrix as above stated. The assets of this estate in Rhode Island consisted of two savings bank accounts. The other appellees are Mary Agnes Almond and her two sisters, Clara Almond and Hannah Almond, all of Blackpool, England, these three being the sole surviving legatees under the above will.

The appellants, describing themselves as such heirs and next of kin of the decedent, filed in the probate court of Pawtucket, in the matter of this estate, a petition in which they set forth in full the disposing part of the will above mentioned, as follows: "I give and bequeath unto William Henry Bond of 21 Rhyl Street Fleetwood the sum of twenty pounds. All the remainder of my personal effects including all money on deposit in Banks in England to be divided equally between my three cousins.

"8 Watsons Road Hannah Almond "Blackpool Mary Agnes Almond.

"Lancashire Clara Almond "

They stated also in this petition that the testator "left money on deposits in America in the City of Pawtucket, State of Rhode Island, as follows:" describing two accounts, one for $12,496.91 in the Industrial Trust Company, Slater Branch, and the other for $4,086.40 in Rhode Island Hospital Trust Company, Pawtucket Branch.

They further stated in this petition that the following questions arose: (1) What is the proper construction of the legacies set forth in the will? (2) Are the legacies or either of them as set forth in the will sufficient to indicate an intent on the part of the testator to devise the funds in America to the legatees named therein? (3) Is the testator intestate as to the monies on deposit in America? (4) Who are the next of kin of George Albert Carr?

There is no dispute as to the proper answer to the last question and it will not be discussed. The others really constitute one question, which is whether, under the proper construction of the concluding legacy in the will, the testator bequeathed the bank accounts in Pawtucket.

The appellees filed in the probate court motions that the above petition of the appellants be dismissed on certain grounds, of which the ones now insisted upon were substantially that the probate court had no jurisdiction to construe the will, by determining whether or not the testator died intestate as to any part of his estate; that the petitioners were barred by laches, two years having elapsed since the will was recorded in this probate court before any question was raised as to its construction, and most of the assets here having meantime been sent by Bertha C. Railton to the executrix in England; and that the petitioners were estopped to file the petition, because on May 21, 1937, they had filed claims against the estate as creditors and about six months later had filed in the superior court of this state a bill in equity against the aforesaid Bertha C. Railton, both individually and as administratrix, to impress a trust upon the funds now in question.

By a decree of the probate court, which was entered on November 30, 1938, and in which no reasons were stated, these motions were granted and the petition of the next of kin of the testator was denied and dismissed "without prejudice". This is the decree which was mentioned at the beginning of this opinion and from which the next of kin of the testator took an appeal to the superior court.

When the case reached that court, the appellees filed there a motion that the appellants' claim of appeal be dismissed, on the grounds that no notice of it had been served upon the appellees; that the superior court had no jurisdiction over the subject matter; and that the appellants had no interest in the will or the estate of the decedent and therefore were not parties aggrieved. After a hearing in the superior court this motion was denied. No exception to this decision was taken by the appellees.

Thereupon the appellees entered their general appearances in the superior court and thus waived the first of the above grounds. A little later they filed a new motion to dismiss the claim of appeal, the grounds which were stated therein for such dismissal, and which are still relied upon, being substantially the same grounds as those which are above stated as the appellees' grounds for their motion in the probate court to dismiss the appellants' petition.

This motion to dismiss the appeal was heard before a justice of the superior court and was denied by him on the ground that a similar motion had previously been denied by another justice of that court, as above stated. An exception was taken by the appellees to this decision.

The case was later tried on its merits before a third justice of the superior court and a jury. A similar motion to dismiss was made in behalf of the appellees and denied, and an exception was taken to that ruling. At the conclusion of the presentation of evidence on both sides, it was agreed by the attorneys for the respective parties that the jury should be discharged and that the case be decided by the trial justice after the arguments had been concluded.

The case was then fully argued by the counsel, and many legal authorities were cited for each side. The trial justice then, from the bench, decided that he had jurisdiction of the case, and also, in substance and effect, decided that the testator intended his English property to go to his English cousins and his American property to go to his American relatives; and the trial justice further decided that the testator died intestate as to his money in America.

To the first and third of these decisions the appellees took exceptions. They also took an exception to the decision of the trial justice in sustaining the appeal of the appellants from the decree of the probate court. The case is now before us on the appellees' bill of exceptions, in which six exceptions are set forth.

The first of these is to the decision by the second justice of the superior court in denying a motion by the appellees to dismiss, on the ground of want of jurisdiction by the court over the subject matter, the appeal taken by the appellants from the abovementioned decree of the probate court entered on November 30, 1938. This decision by the second justice was based on the ground that the same question, of the jurisdiction of the court over the subject matter, had been raised by the first motion to dismiss made in the superior court by the appellees and had been decided against them in a decision by the justice who heard that motion. The ruling of the second justice was that the matter was res judicata for the superior court.

In support of this ruling the appellants have relied, before us, on the opinion of this court in Colaluca v. Firstenberg Bottlers' Supplies, Inc., R.I, 13 A.2d 378, in which the motion then in question was based on the lack of jurisdiction in the superior court over the defendants, not over the subject matter; and we held that the same question could not be again raised in the same court.

The appellants contend that the same doctrine as to res judicata applies to the raising again, in the same court after a ruling thereon, of the question of jurisdiction over the subject matter; that under that doctrine the above ruling of the second justice of the superior court was correct; and that the appellees' first exception should be overruled for that reason. This contention becomes immaterial, if we come to the conclusion that the probate court had jurisdiction to decide, upon their merits, the questions propounded in the appellants' petition. We therefore deem it proper and advisable to decide first this question as to the jurisdiction of the probate court.

The language of general laws 1923, chapter 369, sec. 15, now G.L.1938, chap. 579, § 15, is as follows: "Whenever any question arises as to the identity of a legatee, or the construction or the payment and satisfaction of any legacy, the probate court, upon petition setting out such questions, after notice by citation to all known parties and any additional notice the court may direct, and after hearing thereon, may determine the same and enter its order accordingly." This provision was first enacted in the Court and Practice Act, taking effect July 17, 1905, and has been in effect ever since, being included in each successive revision of the general laws.

In Thompson v. Clarke, 46 R.I. 307, 127 A. 569, this court reversed a...