39 Conn. 254 | Conn. | 1872
The appointment of Mrs. Ames administratrix with the will annexed, was valid by the provisions of the 78th section of the act relating to courts, (Gen. Statutes, page 230.) The statute provides, with regard to probate decrees, that “ every order and decree made by a judge, who is disqualified by any of the other provisions of this act, shall be valid, unless an appeal shall be taken therefrom to the term of the Superior Court next after the making of such order or decree.” It appears of record that the appointment of Mrs. Ames was never appealed from, and her appointment therefore was valid by the provisions of this statute.
But it is said, that the judge of probate who made the appointment afterwards revoked the letters of administration granted to Mrs. Ames, which rendered the appointment null and void, and that consequently there was afterwards no order or decree making the appointment, to appeal from! . •
But the record discloses no such revocation. All that can be said is, that the judge of probate, on the 18th day of July, 1871, was of the opinion that his interest in the National Iron Bank, (which was a creditor of the estate on which Mrs. Ames had been appointed administratrix with the will annexed,) disqualified him to act as judge of. probate in the settlement of the estate ; and thereupon he caused his opinion of the law to be entered upon the record, and passed an order providing for the citation of a judge of probate from an adjoining district, to act as judge in the settlement.of the estate and in granting letters of administration thereon.
He did not intend to revoke the appointment of Mrs. Ames, but simply made a declaration of record that he was disqualified. He doubtless entertained the opinion that the appointment which he had made was null and void, on account of his interest, for his order regarding the citation of a judge frofft an adjoining district discloses the fact. He says in effect that one of the duties that such judge will have to perform, will be the granting of letters of administration on the estate. But his opinion of the law regarding his disqualification, and
We search this record in vain to find any revocation of the appointment of Mrs. Ames, either by the judge who made it, or by the judge from the adjoining district. The judge of the adjoining district seems to have entertained the same opinion regarding the appointment of Mrs. Ames that the judge of the district entertained. He considered that the appointment was void by reason of the interest of the judge who made it, and he likewise caused a declaration to be made of record to that effect, and commenced de novo the settlement of the estate.
It follows therefore, that inasmuch as Mrs. Ames was the legal administratrix with the will annexed, when the appointment of Oliver Ames was made, his appointment was irregu-. lar on the ground that there was no vacancy in the administration to fill.
The view we have taken of this question renders it unnecessary to consider the other questions made in the case, although some of them seem to be decisive of the case of the plaintiff in error.
It might well be questioned, whether, if the court of probate holden by either of these judges had attempted to revoke the appointment of Mrs. Ames, it would have been valid without first giving her an opportunity to be heard. And it might further well be questioned whether, if the appointment of Mrs. Ames had been void ab initio on account of the interest of the judge of the court that made it, she was not entitled by law to the appointment, when the appointment of Oliver Ames was made, if she was qualified and willing to serve.
But it is unnecessary to consider these questions, and we leave them as we find them.
There is no error in the judgment complained of.
