Summary
following death of party, decree of court survived in favor of administrator of decedent's estate
Summary of this case from Burton v. BrowdOpinion
While probate courts may modify and revoke ex parte orders, they have no power to set aside a final decree rendered after due notice and hearing of all parties interested. H, sole legatee and executor under the will of M, had presented to the Court of Probate an application for the probate of M's will. He died after the hearing but before the decree was entered disallowing the will and his counsel, being in ignorance of his death, took an appeal to the Superior Court but later withdrew it. The administrator of H petitioned the court to open its judgment that he might be heard upon the admission of the will to probate. Held: 1. That the decree of the Court of Probate was not rendered void because of the fact that H died before it was entered. 2. That while the attorney for H could not prosecute his appeal to the Superior Court after the death of his client, the right of appeal survived in favor of the administrator, since the death of H suspended the running of the time within which such an appeal could be taken. 3. That the petition of the administrator asking the Court of Probate to open its decree and re-hear the matter, sought a remedy which the court had no power to grant, and it was rightly denied.
Argued January 7th, 1930
Decided March 3d 1930.
APPEAL by the plaintiff from a decree of the Court of Probate for the district of Torrington, taken to the Superior Court in Litchfield County and tried to the court, Foster, J.; judgment dismissing the appeal, from which the plaintiff appealed to this court. No error.
Mary Maguire, late of Torrington, died on or about January 15th, 1926, leaving a written instrument purporting to be her last will and testament in which James Hennessy of Cappawhite, Irish Free State, was named as the sole devisee, legatee and executor. On April 24th, 1926, James Hennessy, through counsel, presented to the Court of Probate for the district of Torrington for probate the instrument purporting to be the last will and testament of Mary Maguire, and on March 12th, 1927, the Court of Probate, after due notice and hearing, all interested parties being present in person or by counsel, adjudged that the instrument was not the last will and testament of Mary Maguire. After the hearing in the Court of Probate, but before March 12th, 1927, James Hennessy died at Cappawhite, Irish Free State. On March 12th, 1927, neither the Court of Probate nor counsel engaged in the matter knew of Hennessy's death, and on April 12th, 1927, counsel who had acted for him, being still ignorant of his death, presented to the Court of Probate an appeal from its decree which was allowed and was returnable to the Superior Court on the first Tuesday of June, 1927, but was never returned to that court. Michael Hennessy was appointed, by the court having jurisdiction over the estate of James Hennessy, administrator upon his estate, and as such administrator, on June 13th, 1927, filed a petition in the Court of Probate for the district of Torrington praying that the court open its judgment decreeing that the instrument purporting to be the last will and testament of Mary Maguire was not her last will and testament, that he might be substituted for James Hennessy, named as executor in that instrument, and that he might be heard upon the matter of its admission to probate. The Court of Probate denied the petition, and he appealed to the Superior Court, which dismissed his appeal.
John J. Dwyer, for the appellant (plaintiff).
Samuel A. Herman, for the appellee (defendant).
Our statute (§ 6177) provides that (with certain exceptions not here involved) no cause or right of action shall be lost or destroyed by the death of any person, but shall survive in favor of his executor or administrator, who may enter and prosecute within six months thereafter, and we have held that the statute applies to appeals from probate. Stiles' Appeal, 41 Conn. 329. James Hennessy, sole legatee and executor under the will of Mary Maguire, had presented to the Court of Probate of Torrington an application for the probate of her will. Upon his death pending such proceeding his executor or administrator could have entered and prosecuted it. He died after the hearing which was held upon his application. Had the court known of his death it could still have entered its decree nunc pro tunc, dating it back to a day subsequent to the hearing and prior to the date of his death to avoid the anomaly of entering a judgment against a person who was dead. Collins v. Prentice, 15 Conn. 423; Brown v. Wheeler, 18 Conn. 198; Finch v. Burr, 79 Conn. 682, 686, 66 A. 504; 1 Freeman on Judgments (5th Ed.) § 122; 1 Black on Judgments (2d Ed.) § 127. The court, however, in ignorance of the death of James Hennessy, entered its decree on March 12th, which was subsequent to the date of his death, from which decree his attorney, also in ignorance of his death, took an appeal to the Superior Court, which appeal was not entered in that court, counsel having in the meantime learned of Hennessy's death. The decree of the Court of Probate was not rendered void because of the fact that Hennessy had died before it was entered. His death did not deprive the court of jurisdiction and the judgment thereafter rendered was merely irregular. "Forms of proceeding for the accomplishment of justice, whether through the use of a legal fiction or of particular kinds of judicial processes, are but means to an end. They are not so essential to its attainment that every departure from them makes what is done a nullity." Finch v. Burr, supra, p. 686. This decree of the Court of Probate was, unless and until it was set aside in some appropriate proceeding, a valid subsisting judgment. Finch v. Burr, supra; Reid v. Holmes, 127 Mass. 326; Martin v. Wagner, 124 Cal. 204, 56 P. 1023; Jefferson v. Hicks, 33 Okla. 407, 126 P. 739, 41 L.R.A. (N.S.) 1053; New Orleans v. Gaines' Admr., 138 U.S. 595, 612, 11 Sup. Ct. 428; Mitchell v. Schoonover, 16 Or. 211, 17 P. 867; 1 Black on Judgments (2d Ed.) § 200; 1 Freeman on Judgments (5th Ed.) § 122. The Court of Probate, upon being informed of the death of James Hennessy, could, of its own motion, have amended the record of its proceedings so that its judgment should speak as of a date prior to that of his death. Dunn's Appeal, 81 Conn. 127, 70 A. 703.
Although this decree of the Court of Probate was valid until set aside in a proper proceeding, the attorney for James Hennessy could not prosecute his appeal to the Superior Court, since the death of his client revoked his authority to take any further action in the matter. He was without authority to enter the appeal which he had taken in the Superior Court, indeed, the taking of the appeal was a nullity. Barton v. New Haven, 74 Conn. 729, 52 A. 403. The right of appeal from the decree of the Court of Probate was not, however, lost by reason of the death of James Hennessy. It survived in favor of the administrator of his estate, Michael Hennessy, who could then suggest the death of James Hennessy upon the record and enter and prosecute the appeal. The appellant, Michael Hennessy, did enter as such administrator and suggest the death of James Hennessy upon the record, and filed a petition praying that the Court of Probate open its judgment denying probate to the instrument purporting to be the will of Mary McGuire, and that he might be heard in the matter. This petition the Court of Probate rightly denied. While Courts of Probate may modify and revoke ex parte orders, they have no power to set aside a final decree rendered after due notice and hearing of all parties interested. Delehanty v. Pitkin, 76 Conn. 412, 56 A. 881; Gill v. Bromley, 107 Conn. 281, 140 A. 721. The right which vested in Michael Hennessy as administrator of the estate of James Hennessy was not a right to have the judgment of the Court of Probate opened and a rehearing had, but it was the right to enter and prosecute an appeal from that decree. That right was not lost, since the death of James Hennessy suspended the running of the time within which such appeal might be taken. Barton v. New Haven, supra. By reason of his death before the decision of the Court of Probate there was no one in a position to prosecute an appeal at the time of that decision, and the period fixed for taking an appeal would begin to run when the administrator upon his estate was appointed. The appellant is virtually the plaintiff in such proceeding, and the rule that the statute of limitations begins to run against a cause of action accruing after the death of a decedent when a personal representative is appointed who can sue thereon applies by analogy to the running of the time within which such appeal may be taken. Root v. Lathrop, 81 Conn. 169, 70 A. 614; 37 Corpus Juris, p. 1034, § 443. The petition of the appellant, in asking the Court of Probate to open its decree and rehear the matter, sought a remedy which the court had no power to grant, and the Superior Court properly dismissed the appeal from its action denying such petition.