Smith v. Chaney

• Decision Date: 11 November 1899
• Citation: Smith v. Chaney, 93 Me. 214, 44 A. 897 (Me. 1899)
• Parties: SMITH et al. v. CHANEY et al.
• Court: Maine Supreme Court

44 A. 897

93 Me. 214

SMITH et al.

v. CHANEY et al.

Supreme Judicial Court of Maine.

Nov. 11, 1899.

(Official.)

Agreed statement from supreme judicial court, York county.

Action by Albert Smith and others against James H. Chaney and others. Submitted on agreed statement. Motion to dismiss. Denied.

By agreement of the parties this case was submitted to the law court upon the following agreed statement of facts:

"Samuel N. Young, the alleged testator, died May 2, 1898, in Berwick, York county, leaving surviving a son, a brother, and Carrie E. Chaney, a niece, one of the residuary legatees under the instrument purporting to be said Young's last will, and the appellants, who are nephews and nieces of said Young.

"June 7, 1895, said Young made what purports to be a will, now in existence, in which the appellants Albert Smith and Sarah E. Smith are residuary devisees and legatees. This will has not yet been offered for probate.

"In 1897 said Young made what also purported to be a will, in which he made the appellant Nellie E. Hern as one of the devisees and legatees. This instrument was destroyed by said Young.

"Upon the above-stated facts, and all inferences legitimately to be drawn therefrom, the court is to dismiss said appeal, or send back for trial, as the law and justice may require."

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

G. C. Yeaton and W. D. Hill, for appellants.

J. A. Edgerly, W. S. Mathews, and G. P. Haley, for appellees.

EMERY, J. Samuel N. Young died May 2, 1898, leaving in existence behind him two instruments in writing, each purporting to be duly executed by him as his last will and testament. In the earlier instrument, dated June 7, 1895, the appellants Albert Smith and Sarah E. Smith were named as residuary legatees. This instrument has not yet been presented for probate. The later instrument, dated March 27, 1898, was presented for probate, and was allowed as the last will of the deceased by probate decree in August, 1898. Albert and Sarah E. Smith claimed an appeal, which appeal the executors under the later instrument asked to have dismissed.

1. The first question is whether the two Smiths named as residuary legatees in the earlier instrument purporting to be a will can appeal from the decree establishing the later instrument as the operative will. They can if they would be concluded by that decree, if allowed to stand, from maintaining any claim of their own to rights or interests in the property of the deceased. The earlier instrument purported to give them rights and interests in the property which would become vested upon the allowance of that instrument as an operative will. If the decree in question had been against the later instrument, then the appellants could have presented the earlier instrument under which they claim, and must have been heard as to its validity as the operative will. The decree as passed, however, by establishing the later instrument as the operative will, also establishes that the earlier instrument is without force or effect. So long as the decree stands, it is a bar against all proceedings to establish the earlier instrument as the operative will, and the appellants, claiming under this earlier instrument, cannot be heard in its support. They are therefore "aggrieved." They are entitled to be heard in opposition to a decree that strikes down their written instrument of title, which purports upon its face to be valid.

It is urged that the appellants cannot be heard to oppose the later instrument until they have presented the earlier instrument for probate, since non constat they would ever present it. It would be futile, however, to begin proceedings for the establishment of the earlier...