Petition of Wagner
| Decision Date | 25 June 1959 |
| Citation | 155 Me. 257,153 A.2d 619 |
| Parties | Petition of Wilma J. WAGNER for Leave to Enter Appeal from Decision of Judge of Probate in Re ESTATE OF FRANK E. WAGNER. |
| Court | Maine Supreme Court |
Arthur A. Peabody, Portland, for petitioner.
James A. Connellan, James R. Desmond, Portland, for appellee.
Argued before WILLIAMSON, C. J., and WEBBER, TAPLEY, SULLIVAN, DUBORD and SIDDALL, JJ.
This is a petition seeking to establish the truth of exceptions under the provisions of Section 14, Chapter 106, R.S.1954 and Rule 40 of the Revised Rules of the Supreme Judicial and Superior Courts. It is further prayed if the truth thereof be established, that the exceptions be heard as if duly filed and brought up to this Court with the petition.
The chronology of procedure leading up to the instant issue is as follows:
One Frank E. Wagner died testate in St. Petersburg, Florida, leaving a widow, Wilma J. Wagner, and as his only heir at law, a son, residing in Portland, Maine, named Franklin A. Wagner.
The widow filed ancillary proceedings for the probate of the purported will of Frank E. Wagner, as a foreign will in the Probate Court in Cumberland County. The son entered his appearance against the allowance of the said purported foreign will on the ground that Frank E. Wagner was domiciled in the State of Maine, and that any will offered for probate in this State should be offered in original domiciliary proceedings. Upon hearing before the Judge of Probate for the County of Cumberland, the contentions of the son were sustained and the petition for ancillary probate of the will dismissed.
Thereupon, the widow attempted to appeal from the decision of the Probate Court, in accordance with Sections 32 and 33, Chapter 153, R.S.1954, which provide in substance that within 20 days from the date of the proceeding appealed from, the appeal must be claimed and a bond and reasons for appeal filed. The appeal failed because the bond was not approved by the Judge of Probate within the 20-day period. Thereafter, the widow filed a petition with the Superior Court acting as the Supreme Court of Probate, seeking authority under the provisions of Section 34, Chapter 153, R.S.1954, to file a late appeal. In her petition she alleged that she was without fault and that the failure to file and perfect the appeal within the 20-day period arose from accident, and that justice required a revision.
To this petition the son seasonably filed his objections. The matter was heard upon an agreed stipulation of facts and in substance it was the contention of the petitioner that the reason her appeal had not been properly completed within the statutory period was that a fire in the office of her attorney had so interfered with the conduct of his business as to prevent the perfection of her appeal.
The presiding justice of the Superior Court sitting as the Supreme Court of Probate found as a fact that the petitioner was without fault and that the failure to complete the appeal with the approval of the bond was due to accident. He also found that justice required a revision and thereupon entered a decree that the widow be allowed to enter and prosecute an appeal with the same effect as if it had been entered in accordance with the provisions of Section 33, Chapter 153, R.S.1954.
To this ruling, the son seasonably attempted to take and file exceptions. The reasons for these exceptions were twofold and as follows:
'1. That the Presiding Justice erred in finding 'that the basic reason for the failure to obtain the approval of the Judge of Probate of the sum of the bond within the twenty day period was from accident not the fault of the petitioner' because as a matter of law, there is not any evidence to sustain such a finding.
The presiding justice refused to allow the exceptions on the ground that exceptions do not lie to the ruling complained of and gave as his authority for such action on his part, the decisions in Sawyer v. Chase, 92 Me. 252, 42 A. 391, and Bodwell-Leighton Company v. Coffin & Wimple, Inc., 144 Me. 367, 69 A.2d 567.
The son then filed the petition now before us seeking to establish the truth of his exceptions and his petition is addressed 'To the Honorable Justice of the Supreme Court of Probate for the County of Cumberland.'
Thereupon, the widow filed a motion that the petition to establish the truth of the exceptions be dismissed for the reason that the Supreme Court of Probate is without jurisdiction to entertain the petition.
The motion to dismiss specifically questions the procedure on the part of the petitioner in addressing herself to the Supreme Court of Probate instead of directly addressing herself to the Supreme Judicial Court sitting as a Court of Law.
It seems essential that the issue raised by the motion to dismiss be first disposed of.
The procedure for establishing the truth of exceptions when they are disallowed by the presiding justice is covered by Section 14, Chapter 106, R.S.1954 and Rule 40 of the Revised Rules of the Superior and Supreme Judicial Courts.
The portions of Section 14, Chapter 106 which are pertinent to the issue are as follows:
Pursuant to Legislative authority granted by Section 14, Rule 40 was adopted and the portions of that Rule pertinent to the instant issue are as follows:
'A party desiring to establish before the Law Court the truth of exceptions presented to a justice at nisi prius and not allowed by him shall within ten days after notice of refusal to allow them file in the court where they were taken (emphasis supplied) his petition supported by affidavit and setting forth in full the bill of exceptions presented and all material facts relating thereto, and give a copy thereof to the opposite party or his attorney of record.
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In Colby v. Tarr, 140 Me. 128, 131, 34 A.2d 621, 623, this Court said that:
It is unnecessary for us to determine whether or not a petition to establish the truth of exceptions may be addressed directly to the Supreme Judicial Court sitting as a court of law, but compliance wiht the Rule which provides for filing the petition in the Court where the exceptions were taken would seem to indicate the proper procedure. Suffice it for us to say that it appears that the petitioner has proceeded in accordance with the provisions of the statute and the supporting Rule of Court, and that the procedure adopted by him is in conformity with authorized procedure.
The motion to dismiss is, therefore, overruled.
Having disposed of the motion to dismiss, the next issue for determination is whether or not the presiding justice was correct in ruling that the petitioner had no right to file exceptions because a matter of judicial discretion was involved.
To reach a decision on this issue it is necessary to give consideration to the cases cited by the presiding justice as authority for his ruling, viz., Sawyer v. Chase, supra; Bodwell-Leighton Company v. Coffin & Wimple, Inc., supra.
Before approaching the issue itself, it seems necessary and advisable to state that apparently confusion has arisen in court decisions in the use of the expression 'exceptions do not lie.' It appears to have been assumed, in some cases at least, that this expression means that exceptions may not be taken and perfected, and it seems proper to point out that there is a strong distinction between preclusion against the filing of exceptions by a litigant and his success in having these exceptions sustained. In many decisions the court, in overruling exceptions has used the expression 'exceptions do not lie' as synonymous with a statement that the exceptions cannot be sustained.
There are, of course, instances where a statute or a rule specifically precludes the taking of exceptions. For example, Rule 17 provides that when a motion for a new trial is addressed to the presiding justice no exceptions lie to his decision. Here the rule means that exceptions may not be taken. However, while an exception taken to a ruling of a single...
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