Tillson v. Small

• Decision Date: 27 January 1888
• Citation: 80 Me. 90,13 A. 402
• Parties: TILLSON v. SMALL.
• Court: Maine Supreme Court

13 A. 402

80 Me. 90

TILLSON

v. SMALL.

Supreme Judicial Court of Maine.

January 27, 1888.

Appeal from probate court, Androscoggin county.

Appeal by the husband of his deceased wife from a decree of the judge of probate allowing the administrator's final account.

Geo. C. & Chas. E. Wing, for appellant. Frye, Cotton & White, for appellee.

HASKELL, J. Probate appeal by the husband of his deceased wife, to the allowance of her administrator's final account. It is objected that the appellant is not entitled by law to take the appeal, because he had released to the administrator, in trust for the heirs at law, all his interest in the estate. "Any person aggrieved by any order, sentence, decree, or denial" of judge of probate, "except the appointment of a special administrator, may appeal," etc. Rev. St. c. 63, § 23. By statute, the appellant takes a distributive share in his wife's estate; and, should he be lawfully deprived thereof by a decree of the judge of probate, he certainly would be aggrieved. In the case at bar the judge of probate decreed the allowance of the appellee's final account, disposing of all the personal estate, without according to the appellant his distributive share therein; and whether such decree was lawful cannot be ascertained by the appellate court unless this appeal could be taken. A decree of distribution must be among all entitled by law to a share in the estate to be divided, even though some shares may have been assigned; but payment to the assignee might be required as a compliance with the decree. Knowlton v. Johnson, 46 Me. 489; Grant v. Bodwell, 78 Me. 460, 7 Atl. Rep. 12.

The appellant executed a release under seal of his interest in the estate. He did it voluntarily. No fraud is shown. He had ample opportunity to read and know the contents of it, and must be presumed to have availed himself of the privilege. Having released to the administrator, in trust for others, his distributive share, he shows no reason to revise the decree allowing the account, showing a disposal of his share according to his release.

Decree of the judge of probate affirmed, with costs. Case remanded.

PETERS, C. J., and WALTON, VIRGIN, LIBBEY, and FOSTER, JJ., concurred.