Shannon v. Shannon

• Decision Date: 31 January 1947
• Citation: Shannon v. Shannon, 142 Me. 307, 51 A.2d 181 (Me. 1947)
• Parties: SHANNON v. SHANNON et al.
• Court: Maine Supreme Court

51 A.2d 181

SHANNON

v.SHANNON et al.

Supreme Judicial Court of Maine.

Jan. 31, 1947.

Bill is equity by Clarence D. Shannon against Ralph Shannon and others to remove cloud from title to certain real estate. The case came to Supreme Judicial Court under statute to be heard on bill, answer and replication.

Case remanded for decree in accordance with opinion.

Edward I. Gross, of Bangor, for plaintiff.

Fellows & Fellows, Frank Fellows, and C. J. O'Leary, all of Bangor, for defendants.

Before STURGIS, C. J., and THAXTER, MURCHIE, and TOMPKINS, JJ.

TOMPKINS, Justice.

Bill in equity to remove cloud from the title to certain real estate situated in Bangor, Penobscot County, Maine. The case comes to this court under the provisions of Section 24 of Chapter 95 of the Revised Statutes of 1944 of the State of Maine, to be heard on bill, answer and replication.

The case as stated in the bill is substantially as follows. The plaintiff claims title to the real estate under the will of Michael Shannon, late of Bangor. Michael Shannon died on August 30, 1942, testate, leaving a widow, Christina Shannon, three daughters and three sons. In the will he bequeathed certain money and the income from certain buildings to his wife ‘in lieu of such share and interest as she would have in my estate if I died intestate,’ and to his son Clarence D. Shannon the real estate in question.

The will of said Michael Shannon was duly proved and allowed on October 7, 1942, by the Judge of Probate in and for the county of Penobscot. On the 22d day of October 1942, being within the twenty days allowed for an appeal from the decree of the Judge of Probate, an appeal was taken by the widow to the Supreme Court of Probate. The decree of the Judge of Probate was affirmed by the Supreme Court of Probate on the 6th day of April 1943. On April 10, 1943, the widow filed an election to waive the provisions of the will and claim her right and interest by descent. The election and waiver were duly recorded on the 14th day of April 1943. The widow, Christina Shannon, died on the 28th day of April 1945, testate. Her will was probated and allowed. By the terms of her will all her real estate was devised to Ralph Shannon. The plaintiff claims to own the real estate in controversy in fee simple under the will of said Michael Shannon. The defendant, Ralph Shannon, claims to own one third interest in common and undivided of the same through the will of his mother Christina Shannon. The legal controversy upon which the decision in the case depends is the effect of the waiver filed by the widow. The plaintiff claims that the waiver had no effect because it was not filed within six months after the probate of the will of Michael Shannon, as provided by Chapter 156, Section 13, of the Revised Statutes of 1944. This is the sole issue for determination by this court.

Section 13 of Chapter 156 provides, so far as this case is concerned, as follows: ‘When a specific provision is made in a will for the widow or widower of the testator or testatrix * * * such legatee or devisee may within 6 months after the probate of said will and not afterwards, * * * make election, and file notice thereof in the registry of probate, whether to accept said provision or claim the right and interest by descent, herein provided.’ Section 14 on the same Chapter provides, ‘When a provision is made in a will for the widow of a testator who died after the 26th day of April, 1897, or for the widower of a testatrix, who died after the 1st day of June, 1903, and such provision is waived as aforesaid, such widow or widower shall have and receive the same share of the real estate and the same distributive share of the real and personal estate of such testator or testatrix as is provided by law in an intestate estate.’ Par. 1 of Sec. 1 of Chapter 156, so far as relates to the case under consideration, provides as follows: ‘If he leaves a widow and issue, 1/3 to the widow.’

Section 32 of Chapter 140 provides that ‘The superior court is the supreme court of probate, and has appellate jurisdiction in all matters determinable by the several judges of probate; and any person aggrieved by any order, sentence, decree, or denial of such judges, (within certain exception), may appeal therefrom to the supreme court of probate to be held within the county, if he claims his appeal within 20 days from the date of the proceedings appealed from.’ Section 37 of the same Chapter provides that ‘Such appeal shall be cognizable at the next term of the supreme court of probate held after the expiration of 34 days from the date of the proceedings appealed from, and said appellate court may reverse or affirm, in whole or in part, the sentence or act appealed from, pass such decree thereon as the judge of probate ought to have passed, remit the case to the probate court for further proceedings, or make any order therein that law and justice require; and if, upon such hearing, any question of fact occurs proper for a trial by jury, an issue may be framed for that purpose under the direction of the court, and so tried.’

The waiver of the provisions of the will by the widow was not filed until after six months from the time the will was allowed by the Probate Court, but was filed within six months from the date of the decree of the Supreme Court of Probate affirming the decree of the Probate Court. The defendant's contention is that the appeal to the Supreme Court of Probate vacated the decree of the Probate Court, and that the waiver was seasonably filed because the will had not been judicially allowed until the appellate court had spoken. Probate courts are wholly creatures of the legislature. They are of special and limited jurisdiction, their proceedings are not according to the course of the common law. Bradstreet v. Bradstreet, 64 Me. 204; Taber v. Douglass, 101 Me. 363, 64 A. 653. The Supreme Court of Probate is created by the statute as an appellate court. Its jurisdiction and proceedings are clearly defined by the statute. It has the same jurisdiction as the Probate Court but the jurisdiction is appellate and not original.

In ordinary judgments between plaintiff and defendant a valid appeal vacates a valid decree or judgment and until affirmed by the appellate court there is no judgment. Knox v. Lermond, 3 Me. 377, at page 379; Inhabitants of Winslow v. County Commissioners, 31 Me. 444; Atkins v. Wyman, 45 Me. 399; Hunter v. Cole, 49 Me. 556; Milliken v. Morey, 85 Me. 340, 342, 27 A. 188; Thompson v. Thompson, 1 N. J. Law 159.

The extent to which a judgment is vacated by appeal depends entirely upon the subject matter of the appeal and the jurisdiction of the appellate court over such subject matter. There is no such thing as an appeal known to the common law. It is regulated exclusively by statute. An appeal at common law is only a writ of error. If the appeal...