Smith v. Chaney

Probate. Appeal. Will. Practice. 1. Persons named as legatees in a written instrument purporting to be the will of one deceased, though not presented for probate, can appeal from a decree of the judge of probate allowing another instrument of a later date as the will of the deceased. 2. When in such an appeal the appellants have inadvertently described themselves as heirs of the deceased, instead of legatees under a prior will, such misdescription does not bar the appeal and it may be corrected.

Agreed Statement. 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 2d, 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 7th, 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 hot 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 Y oung. “ 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.” If an amendment be necessary, R. S., c. 82, § 10, provides that “ no process shall be abated, quashed or reversed for want of form only .... when the person and case can be rightly understood.” Vide Waterman v. Hoekray, 79 Maine, 149. But appellees claim that no amendment can be allowed as this is another court and we are asking to amend process which is not in this court. Not so, for two reasons. (1) By It. S., c. 68, § 23, this court is the supreme court of probate. (2) We do not ask to amend any paper or proceeding in the lower court. We are here to redescribe the interest of the petitioner. If it be claimed that petitioners have no such interest as will enable them to prosecute the appeal, then, of course, the test must be whether we are, in the language of It. S., c. 63, § 23, “ aggrieved.” What this means in this state has often been considered in the court in various cases, from Peering v. Adams, 34 Maine, 41, and Paine v. Goodwin, 56 Maine, 411, to Shaw et als. Appellants, 81 Maine, 207, and Blastow v. Hardy, 83 Maine, 28, and held to mean “one whose rights of property are operated upon or his ‘interest’ directly affected thereby.” As to the interest necessary to enable a party to appeal, vide Lawless v. Beagan, 128 Mass. 592, and citations in Pattee v. Stetson, 170 Mass. 93, 95. In Lamson v. Knowles, 170 Mass. 295, the interest of a guardian ad litem of a possible lineal next of kin was held sufficient. Paine v. Goodwin, 56 Maine, 411, is not dissimilar to the case now at bar. In Massachusetts, in Parrar v. Parker, 3 Allen, 556, 559, the true test is said to be put by the court in Lewis v. Bolitho, 6 Gray, 137, thus: “ Hid the decree of the probate court conclude or in any way affect the right of the appellant?” For other citations vide Wilson’s Maine Probate Law, p. 391, note 39. We having an interest as legatees under a former will, find no law or practice directing that this interest shall be made manifest to the court by any one method of procedure. While the practice may not be on the whole objectionable to offer two instruments for probate purporting each to be the last will and testament of deceased, and carry them through the courts pari passu, we know of no reason or authority why this should exclude any other practice in many particulars much less cumbersome. In Sail v. Sail, 17 Pick. 373, 378, a devisee under a former will not offered for probate was held to be interested to the extent of disqualifying him as a witness. First duty of appellants is to establish their right to appeal, and unless this is made affirmatively to appear, the appeal should be dismissed without further examination. Pettingill v. Pettingill, 60 Maine, 419; Briard v. Goodale, 86 Maine, 101; Peering v. Adams, 34 Maine, 41; Gray v. Gardner, 81 Maine, 558; Milliken v. Morey, 85 Maine, 342. Reasons of appeal, which are founded on an allegation of fact that does not appear upon the record, and of which no proof has been offered, cannot be maintained. Moody v. Sutchinson, 44 Maine, 63; Lamb v. Lamb, 11 Pick. 374. Every appellant from a decree of a judge of probate must, as a preliminary proceeding, establish his interest in the subject matter from which he claims an appeal; and this is as essential to his standing in court as it is to show that he has duly claimed an appeal, and filed his bond and reasons thereupon according to law. The right of appeal is conditional, and the appeal can be prosecuted only upon complying with the requisites of the statutes relating to appeals. Veazie Bank v. Young, 53 Maine, 560 ; Bartlett, Appellant, 82 Maine, 210; Eddy’s Case, 6 Cush. 28; Palmer v. Payton, 4 Cush. 270 ; Clark v. B. B., 81 Maine, 477. The legislature has declared upon what conditions a party claiming an appeal shall have a right to prosecute it. It is a statutory right, and the terms of the statute must be complied with before a party appealing can proceed in the prosecution of his appeal. Nowell v. Nowell, 8 Maine, 220. The appellant must be aggrieved by the decree from which he appeals. “In legal acceptation, a party is aggrieved by such a decree only when it operates on his property or bears upon his interest directly.” Deering v. Adams, 34 Maine, 44. The agreed statement shows that the testator left a son surviving him, consequently these appellants, who were only nephews and nieces of the testator, were not heirs at law, or interested in the estate as they alleged; and their appeal should be dismissed. The case shows that Young made a will in 1897, which, of course, revoked the will of 1895, and that he subsequently destroyed this will, and there is nothing here to show that at the time he destroyed this will he intended to revive the earlier will, and in the absence of such evidence the destruction and consequent revocation of the will of 1897 operated to revoke the will of 1895 at the same time; and therefore no will was in existence, except the one appealed from, at the time of Young’s death, and consequently none but heirs at law could be interested in said estate so as to take an appeal from the probate of this will. If a will, which was duly executed, and which contained a clause expressly revoking former wills, is cancelled, it is a question of intention, to be collected from all the circumstances of the case, whether an earlier will, which has not been destroyed, is revived by such cancellation; and in the absence of affirmative evidence that the testator intended to revive the earlier will by the cancellation of the second, the earlier will will be held not to be revived. Pickens v. Davis, 134 Mass. 252; Williams v. Williams, 142 Mass. 515; R. S., c. 74, § 3.