Sherer v. Sherer

• Decision Date: 01 November 1899
• Citation: 44 A. 899,93 Me. 210
• Parties: SHERER v. SHERER.
• Court: Maine Supreme Court

44 A. 899

93 Me. 210

SHERER

v. SHERER.

Supreme Judicial Court of Maine.

Nov. 1, 1899.

(Official.)

Exceptions from supreme Judicial court, Knox county.

This was an appeal by Charles Sherer, administrator of the goods and estate of Reuben Sherer, from a decree of the judge of probate for the county of Knox authorizing Fred Sherer to commence a suit on the probate bond of said administrator for the benefit of said estate.

When the appeal came on to be heard, the presiding justice ruled, as a matter of law, that Charles Sherer, the administrator, had no right to appeal from the decision of the judge of probate authorizing the commencing of a suit on his probate bond, under any circumstances, or upon any state of facts. To this ruling the appellant, Charles Sherer, excepted. Overruled.

The exceptions present only the legal proposition as stated in the ruling of the court. The facts upon which the appeal was based are not stated.

The material portion of the statute (Rev. St. c. 63, § 23) under which the right of appeal was claimed is as follows:

"Sec. 23. The supreme judicial 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, except the appointment of a special administrator, may appeal therefrom to the supreme court to he held within the county," etc.

The decree of the judge of probate authorizing the commencement of a suit on a probate bond is by virtue of the provisions of Rev. St. c. 72, § 16, which reads as follows, so far as material "Sec. 16. The judge of probate may expressly authorize any party interested, to commence a suit on a probate bond for the benefit of the estate, and such authority shall be alleged in the process."

Argued before EMERY, HASKELL, WISWELL, and STROUT, JJ.

C. E. and A. S. Littlefleld, for appellant.

L. M. Staples, for appellee.

EMERY, J. The appellee cites the case of Bulfinch v. Inhabitants of Waldoboro, 54 Me. 150, as conclusive authority against the claim of an administrator to appeal from a decree of the judge of probate allowing an action in the name of the judge upon the bond of the administrator. The appellant urges that the case cited was decided adversely to the administrator upon the ground that the administrator would be indemnified by the costs he would recover in case the action proved to be groundless. He further urges that this ground is untenable, since, as he says, costs cannot be recovered by the defendant against the judge, or any one else, in such an action, and hence that the decision is erroneous, and should not be followed.

It may not be amiss, therefore, to re-examine upon principle the question whether an administrator has a legal right to appeal from such a decree. Only persons "aggrieved" by a decree can appeal therefrom (Rev. St. c. 63, § 23), but it is now long and well settled that a person is not "aggrieved," in the statutory sense of that word, unless he would...