Patterson v. Patterson

• Decision Date: 05 July 1962
• Citation: 182 A.2d 672,158 Me. 253
• Parties: James B. PATTERSON v. Nora F. PATTERSON, Ex'x, Under Will of Ralph H. Patterson.
• Court: Maine Supreme Court

Page 672

182 A.2d 672

158 Me. 253

James B. PATTERSON v. Nora F. PATTERSON, Ex'x, Under Will of Ralph H. Patterson.

Supreme Judicial Court of Maine.

July 5, 1962.

Udell Bramson, Portland, for plaintiff.

Jacob Agger and Philip G. Willard, Portland, for defendant.

Before WILLIAMSON, C. J., and WEBBER, TAPLEY, SULLIVAN and SIDDALL, JJ.

SULLIVAN, Justice.

This case arises on appeal from the dismissal by the presiding Justice of the Supreme Court of Probate, of plaintiff's complaint.

The record consists of the complaint, of the defendant's answer thereto and counterclaim, of the defendant's motion to dismiss the complaint and of the court's decision upon that motion. These papers supply some data. Ralph H. Patterson died on December 15, A.D.1959 survived by the plaintiff, James B. Patterson, as his only son and heir and by the defendant as his widow. The will of Ralph H. Patterson without adversative appearance or opposition was admitted to probate by the Judge of the Probate Court on January 7, A.D.1960 while James B. Patterson was yet a minor. October 4, A.D.1960 plaintiff asserted by complaint to the Superior Court that the instrument probated had not been duly executed and that at the time of its purported execution Ralph H. Patterson was of unsound mind and was a victim of undue influence. Plaintiff averred that because of his infancy and without fault he had not appeared in the probate proceeding and had not taken or prosecuted an appeal. Justice, the plaintiff contended, requires a revision of the decree which probated the will and plaintiff petitioned the Superior Court for belated leave to enter and prosecute an appeal from such decree of the Probate Court.

By answer the defendant, the executrix of the will, admitted certain of the plaintiff's allegations and denied others. The defendant in her answer and in a motion to dismiss the complaint protested that the plaintiff had failed to state in his complaint any cause of action entitling him to relief and that the plaintiff should have resorted for any redress to the Supreme Court of Probate and not to the Superior Court.

The defendant in a counterclaim affirmed that the plaintiff had already received $550 in settlement of any and all of his claims against the estate of Ralph H. Patterson or against the defendant.

The presiding Justice granted defendant's motion to dismiss in the following language:

'This matter came on to be heard upon a motion to dismiss filed by the defendant.

'Upon consideration thereof and upon the pleadings, the motion is granted.

'It appearing, among other matters considered, that the plaintiff failed to conform to the statutory requirements through which this Court may, under proper circumstances, allow a probate appeal to be entered.

'R.S.1954, Chap. 134, Sec. 34.

'The entry shall be motion to dismiss granted.' (Italics supplied.)

The record contains no transcription of the proceedings at the hearing upon or argument of the motion for dismissal of the complaint or of the topics or elements there developed. This Court cannot know whether the hearing was formal or informal and cannot speculate as to what the record might show if amplified or fully presented. It is essential that this Court know such evidence or conceded factors as decided the presiding Justice in his ruling and decision. Edwards v. Estate of Williams, 139 Me. 210, 213, 28 A.2d 560.

A conventional appeal to the Supreme Court of Probate from the decree of the Judge of Probate, allowing the will could have been instituted as of course on or before January 27, A.D.1960, R.S. c. 153, § 32, as amended; In re Carter et al., 113 Me. 232, 234, 93 A. 543. There was no such appeal. Although the plaintiff was a minor at the time of the probate of the will nevertheless the decree was one in rem and effective against him despite his infancy. R.S. c. 154, § 5; c. 153, § 52; Bonnemort v. Gill, 167 Mass. 338, 340, 45 N.E. 768; Fuller v. Sylvia, 243 Mass. 156, 159, 137 N.E. 173; Donnell v. Goss, 269 Mass. 214, 217, 169 N.E. 150; Ryan v. Cashman, 327 Mass. 677, 679, 100 N.E.2d 838; McEndy v. McEndy, 318 Mass. 775, 776, 64 N.E.2d 435.

Within one year from January 27, A.D.1960 and presumably after attaining his majority the plaintiff for alleged cause invoked R.S. c. 153, § 34 as amended by P.L.1959, c. 317, § 287, a statute providing in pertinent part:

'If any such person from accident, mistake, defect of notice or otherwise without fault on his part omits to claim or prosecute his appeal, the supreme court of probate, if justice requires a revision, may, upon reasonable terms, allow an appeal to be entered * * * as if it had been seasonably done; * * *.'

'The superior court is the supreme court of probate and has appellate jurisdiction in all matters determinable by the several judges of probate; * * *.' R.S. c. 153, § 32, as amended.

Plaintiff in his complaint represented that the instrument probated as his father's will is null and void and further pleaded verbatim, as follows:

'3. Plaintiff avers that at the time the said will was allowed the plaintiff was a minor, and an infant, and no one appeared to oppose the granting of the allowance of said will.

'4. Plaintiff avers that as a result of the above fact, and without fault on his part, he omitted to claim or prosecute his appeal or to appear in any said proceedings, and he avers that justice requires a revision of the ruling of the judge of probate granting the will.

'5. Wherefore your plaintiff prays that he may be allowed to enter an appeal from the decree of said * * * Court of probate to this Superior Court, and to be allowed to prosecute his appeal as if it had been seasonably done, * * *'

The motion to dismiss plaintiff's complaint tests the legal sufficiency of the complaint. All well pleaded material allegations are to be regarded as admittedly true, In re Carter et al., 110 Me. 1, 4, 85 A. 39, but not conclusions of law from the facts alleged. Hopkins v. Erskine, 118 Me. 276, 277, 107 A. 829. The technical rules of pleading are not to be stringently applied. Danby v. Dawes, 81 Me. 30, 32, 16 A. 255, M.R.C.P., Rule 8(f), 155 Me. 496.

'* * * It was not necessary, we think, that the petition should aver wherein it would appear that the petitioner's omission to enter or prosecute his appeal was from accident, mistake, defect of notice, or otherwise without fault on his part. That is a matter of proof, and it need not be specifically alleged. * * *' Ellis, Petition of, 116 Me. 462, 466, 102 A. 291, 293.

Confrontation of plaintiff's complaint, paragraphs 3, 4 and 5, supra, with the jurisdictional requirements in ...