Slaimen v. Curtis, 624.

• Decision Date: 25 June 1936
• Docket Number: No. 624.,624.
• Citation: 185 A. 684
• Parties: SLAIMEN et ux. v. CURTIS.
• Court: Rhode Island Supreme Court

185 A. 684

SLAIMEN et ux.

v. CURTIS.

No. 624.

Supreme Court of Rhode Island.

June 25, 1936.

Appeal from Probate Court, Town of Westerly; Edward M. Burke, Judge.

In the matter of the estate of Harry C. Curtis, deceased, of whose will Bessie W. Curtis is executrix. From a decree denying a petition by Slaimen N. Slaimen and wife to file a claim against the estate out of time, petitioners appeal.

Appeal denied and dismissed, decree affirmed, and cause remanded.

James M. Gillrain, of Providence, for appellants.

Tillinghast, Collins & Tanner and Colin MacR. Makepeace, all of Providence, for appellee.

MOSS, Justice.

This is an appeal directly to this court, under the special rule adopted February 19, 1934, from a decree entered by the probate court of the town of Westerly, on January 15, 1935, denying the appellants' petition to file a claim out of time against the estate of Harry C. Curtis, deceased, of whose will the appellee is executrix. We have before us duly authenticated copies of the appellants' petition, the testimony taken at the hearing thereon, the decree, in which the probate court denied the petition without stating any specific reason for so doing, and the appeal from the decree. Under the rule above mentioned, the only question before us is whether there was an abuse of discretion by the probate court.

The statutory provision which' governs this case is General Laws 1923, c. 365, § 3, which reads as follows: "All persons having claims, including pending suits, preferred claims, and claims of the executor or administrator, against the estate of a deceased person shall file statements of their claims in the office of the clerk of the probate court. Claims filed within six months from the said first publication shall be preferred in payment over all claims subsequently filed. Claims not filed within one year from said publication shall be barred: Provided, that a creditor who by reason of accident, mistake, or unforeseen cause has failed to file his claim at any time before distribution of the estate file his claim, which claim, if allowed, shall be paid out of assets remaining in the hands of the executor or administrator; provided, also that a creditor who, by reason of any other cause, has failed to file his claim, may, at any time, before the distribution of the estate, petition the probate court for leave to file his claim, and the probate court, after notice to the executor or administrator of the estate, and a hearing on said petition, may, in its discretion, grant leave to file such claim upon such terms, if any, as said court shall prescribe, which claim, if allowed, shall be paid out of the assets remaining in the hands of the executor or administrator."

The record before us shows the following facts: The appellants' petition is based on a claim that on August 3, 1925, the appellee's testator was indebted to them on a certain transaction, in the amount of $1,988.17. On this claim they brought an action in the superior court against him on August 1, 1931. The appellee was then the guardian of his estate and as such filed pleas in this action, which has never been brought to trial. The testator died July 28, 1932, and the appellee was appointed executrix by the probate court September 6, 1932, and duly qualified as such. The first publication of the notice of her appointment was duly made September 12, 1932. Final distribution, to the legatees under the will, of the residue of the estate was made on November...