Tillinghast v. Brown Univ.

• Decision Date: 14 May 1902
• Citation: 24 R.I. 179,52 A. 891
• Parties: TILLINGHAST et al. v. BROWN UNIVERSITY et al.
• Court: Rhode Island Supreme Court

52 A. 891

24 R.I. 179

TILLINGHAST et al.

v. BROWN UNIVERSITY et al.

Supreme Court of Rhode Island.

May 14, 1902.

Appeal from probate court.

Petition by Brown University and others against James Tillinghast and others to compel an accounting of an estate of which defendants were executors. From the decree defendants appeal, and move for a new trial. Petition granted.

Argued before TILLINGHAST, ROGERS, and DOUGLAS, JJ

Edwards & Angell and William R. Tillinghast, for appellants.

John C. Pegram and Arnold Green, for appellees.

DOUGLAS, J. The appellants, executors of the will of John Wilson Smith, late of Providence, deceased, upon the petition of the appellees, residuary legatees under said will, were directed to file an inventory and account of his estate by decree of the municipal court of Providence entered September 13, 1901. Within the time limited by law they claimed an appeal from said decree, and a jury trial thereon, and filed their reasons of appeal in the common pleas division, where the case was sent under the statute. The appellees in said common pleas division moved to dismiss the appeal on the allegations: (1) That the reasons of appeal present no question triable by a jury; (2) that the order appealed from is not one from which an appeal lies. The motion was granted, and the appellants duly excepted, and pray for a new trial.

The question before this division is whether or not the common pleas division erred in dismissing the appeal, and the answer to this question depends upon two others, to wit: First. Was this appeal a proper subject of claim for jury trial and lawfully taken to the common pleas division? Secondly. Was the order or decree of the probate court in the case one from which an appeal lies? Gen. Laws, c. 248, provides;

"Section 1. Any person aggrieved by any order or decree of any court of probate * * * may, unless provision be made to the contrary, appeal therefrom to the supreme court forty days next after such order or decree shall have been made.

"Sec. 2. Either party may within forty-five days next after such order or decree, claim a jury trial by notice in writing filed with the clerk of such probate court," in which case it is provided further "the clerk shall transmit a copy of the record to the common pleas division of the supreme court," etc.

Section 3 provides that, if neither party claim a jury trial, as aforesaid, the clerk shall transmit a copy of the record to the appellate division of the supreme court. By this statute, in all cases where an appeal lies and has been claimed, the right is given to either party to file a claim for jury trial, and in that case the appeal is sent to the common pleas division. It is to be noted that the appeal is taken to the supreme court, not in terms to either division. Within five days after the appeal is taken, it is determined which division it shall be sent to. In the probate court there are no pleadings making an issue of law or of fact. There can be no selection of cases for one division or the other by reference to the papers in the case. The issues are settled for the first time by the filing of the reasons of appeal, and this occurs after the destination of the appeal has been determined. At the time when the selection of the appellate forum must be made, there can be no limitation of the choice, based upon the character of the case, which is not then developed. Indeed, at that time neither party can be certain that the facts he intends to rely upon may not be contested by his opponent, and that issues may not arise which he would wish to have decided by a jury. This is particularly true of the appellee, who cannot know what reasons of appeal may be assigned by the appellant. The language of the statute is general, and we think it should be construed as of universal application. There will arise no serious inconvenience in a jury trial if it appears that the real questions involved are questions of law, and that the judge's discretion must decide the case. The possibility of such cases arising is not, in our opinion, sufficient reason for restricting the obvious latitude of choice given by the statute.

In considering the second question it is evident that no objection can be taken to the appellants as not "aggrieved" by the order, if any one could be aggrieved by it. They are in the strictest sense parties to the proceeding, and the only persons affected adversely by it. If the appeal lies, they are entitled to take it. Gannon v. Doyle, 16 R. I. 727, 19 Atl. 331. Neither can it be urged, in opposition to the right of appeal, that the order in its nature is interlocutory, and not final. Decisions of the district courts and of the common pleas division of this court, which are not decisive of the case, cannot be taken to the appellate division at once, but must await the final disposition of the case in the court where they are given, exceptions being duly taken and reserved. Mellen v. Battey, 22 R. I. 390, 48 Atl. 141. But this is not true of orders in probate proceedings. Many interlocutory questions have always been considered fit subjects of appeal in matters of probate. Some of them are so recognized by the Public Laws, as the probate of a will (chapter 211, § 1; chapter 212, § 52); the granting of letters testamentary or of administration or of guardianship (chapter 210, § 16); for the distribution or delivery of property or payment of money (chapter 212, § 39); confirming the report of commissioners (chapter 215, §§ 6, 18, 19; chapter 220, § 22); dividing real estate and assigning dower (chapter 216, § 24); settling guardian's account (chapter 197, I 38). The probate of a will is but the beginning of proceedings to settle an estate. The approval of an executor or the appointment of an administrator or of a guardian Is not the end of the case before the court; neither are the orders to which chapter 212, f 39, relates, nor the confirmation of the report of commissioners. The division of real estate and the approval of a guardian's account may be the end of a case. The Public Laws, on the other hand, expressly provide that certain orders of the probate court shall be without appeal. Some of these are orders approving the commitment of an habitual drunkard to a hospital (chapter 196, § 9); authorizing guardians to sell personal property (chapter 196, § 24), or to compromise claims (section 30); approving compromises by executors or administrators (chapter 208, §...