Whitmarsh v. O'Reilly, 9786
| Decision Date | 16 August 1956 |
| Docket Number | No. 9786,9786 |
| Parties | Carol Ann WHITMARSH v. J. Clifden O'REILLY. Ex. |
| Court | Rhode Island Supreme Court |
Aram K. Berberian, Providence, for appellant.
J. Clifden O'Reilly, Providence, pro se.
This is a petition for the appointment of an administrator of the estate of Mabel L. Whitmarsh, late of the city of Cranston who deceased intestate June 23, 1955. The petition was filed in the probate court of the city of Cranston on July 11, 1955 by Carol Ann Whitmarsh, infant, by her next friend and mother Phyllis Whitmarsh and prayed for the appointment, as administrator, of Joseph G. Bodie of said city or for some other suitable person. At the time of her death the intestate was a widow. The petition alleges that she left two heirs, Carol Ann Whitmarsh and Lucy May Stubbs. They were children of the intestate's deceased son.
At the hearing on the petition before the probate court of the city of Cranston on August 12, 1955 that court denied the prayer for the appointment of Joseph G. Bodie as administrator and appointed instead J. Clifden O'Reilly, an attorney, of the city of Pawtucket. Lucy May Stubbs did not appear at this hearing either in person or by counsel. Joseph G. Bodie testified in the superior court that he was not present at the hearing in the probate court. The petition alleged that the estate was in litigation and that the value thereof was uncertain. From the decree of the probate court making such apppointment, the granddaughter Carol Ann Whitmarsh appealed to the superior court.
In her reasons of appeal she prayed that the decree of the probate court be reversed and that Joseph G. Bodie be appointed administrator. The appellant also alleged in her reasons of appeal that William J. McGair, a contingent debtor of the estate, and J. Clifden O'Reilly are the only adversary parties, other than the appellant, who entered appearances in this cause in the probate court.
The case was heard in the superior court de novo before a justice thereof sitting without a jury. The record shows that prior to the hearing of the appeal in that court, on a motion filed by the appellant by her next friend and mother, Joseph G. Bodie was appointed guardian ad litem of the appellant Carol Ann Whitmarsh, an infant who was then five years of age. The record also shows that Lucy May Stubbs, the other heir, by written stipulation entered her appearance in the superior court on November 5, 1956 and the appellant's counsel also filed an entry of appearance on November 14, 195l as counsel for Lucy May Stubbs. However, there is nothing in the record to indicate that Lucy May Stubbs has been formally added as a party in this case nor did she testify as a witness therein.
At the hearing in the superior court Joseph G. Bodie was the only witness presented by the appellant. He testified in substance that he had known the intestate quite well and had cared for her as best he could financially and in many other ways; that he was familiar with the litigation in which her estate was involved; that he knew the grandchildren; and that he concurred with them in requesting the appointment of himself or Lucy May Stubbs as administrator. He testified further that, although he did not know J. Clifden O'Reilly personally, he lacked confidence in him and objected to his appointment because he was not a relative of the intestate and had no financial interest in the estate.
The appellee, testifying in his own behalf, stated that he was a member of the bar in good standing and he categorically denied the allegation that he was not a suitable person to act as administrator. He admitted that he had no financial interest in the estate, but stated that Joseph G. Bodie did have such an interest as a creditor. In concluding his testimony he stated that if his appointment continued he would serve the interest of the estate as required by the statute and by his oath of office.
After the hearing the trial justice rendered a written decision in which he reviewed the evidence and the law applicable thereto. He noted that it did not appear in evidence that either Joseph G. Bodie or J. Clifden O'Reilly was related to the family of the intestate. In referring to the decision of the judge of the probate court, he said 'it may well be that he thought for an estate in litigation an attorney-at-law would make a more suitable administrator than a man not learned in the law.' After stating that he believed Mr. O'Reilly was a man of high character and a lawyer of many years' experience, the trial justice concluded that no sound reason had been advanced to show that the probate court had abused its discretion in appointing the appellee. The superior court thereupon entered a decree affirming the appointment of J. Clifden O'Reilly as administrator of the estate of Mabel L. Whitmarsh. The appellant excepted to such decision and has duly prosecuted her bill of exceptions to this court, stating therein that the decision is against the law, the evidence and the weight thereof.
The appellant contends that under General Laws 1938, chapter 575, § 9, Lucy May Stubbs being an heir and otherwise suitable and competent, or Joseph G. Bodie, as the nominee of Carol Ann Whitmarsh, who because of her infancy was neither suitable nor competent, was entitled to be appointed to administer the estate; and that the trial justice erred in refusing to reverse the decree of the probate court and to appoint either Lucy May Stubbs or Joseph G. Bodie. In substance the appellant argues that a person who has no legal interest in an estate cannot, as a matter of law, be appointed to administer it to the exclusion of next of kin or their nominees.
The provisions of § 9 read as follows:
The appellee contends that there is nothing in the record which indicates that Lucy May Stubbs was at any time a recognized party to the proceedings in the probate court; that a proper motion was not filed in the superior court, nor was any order entered permitting her to become a party appellant in these proceedings; and that the decree of the superior court decided only the case of Carol Ann Whitmarsh v. J. Clifden O'Reilly. In the circumstances of this case it is our opinion...
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