Angell v. Groff, 42 App. D.C. 198

Angell v. Groff

42 App. D.C. 198 | D.C. | 1914

Mr. Justice Yan Orsdel

delivered the opinion of the Court:

Relief is here sought under the provisions of sec. 137 of the District Code [31 Stat. at L. 1212, chap. 854], as follows: “If, upon the hearing of the application to admit a will to probate, the court shall decree that the same be admitted to probate, any person in interest may file a caveat to said will, and pray .that the probate thereof may be revoked at any time within three months after such decree, if it be a will of personal property, and as far as it is a will of personal property; and if it be *201a will of real estate, and as far as it is such will of real estate, any person interested actually served with process or personally appearing in such proceedings may file such caveat within one year after such decree; any person interested who at said time was returned, ‘Not to be found,’ and was proceeded against by publication, may file such caveat within two years after such decree; and any person interested who at the time of said decree is within the age of twenty-one years may file such caveat within one year after he becomes of age.”

The question presented is whether or not the caveator, Edna Groff Angelí, was a “person in interest” or “interested person” at the time this caveat was filed. No question is raised as to the sufficiency of notice; hence all persons in interest will be deemed to have been legally present when the final order of probate was made. The interest which a person must possess to enable him to assail the validity of a will is such that, had the testator died intestate, he would have been entitled to a distributive share in the estate.

It is not averred that Adam II. Groff died prior to the date of the probate of the will. Indeed, it was adjudicated in the former proceeding that he was alive at that time. Nor is it averred that he had died prior to the filing of this caveat. It is averred, however, that he disappeared about April 25, 1906, and that letters of administration upon his estate had been granted May 21, 1913. The grant of letters was undoubtedly based upon the legal presumption of death, which arose after the lapse of seven years from the date of his alleged disappearance. D. C. Code, sec. 252 [31 Stat. at L. 1230, chap. 854].

At the time of the probate of the will of Diller B. Groff, May 17, 1910, the summons as to Adam H. Groff was returned, “Not to be found.” Being alive at that date, he had two years within which to caveat the will of his father. The two years elapsed before the expiration of seven years from the date of his disappearance, when the statute created a legal presumption of death,—the date of her father’s death here relied upon by the caveator. It logically follows that Adam H. Groff, being legally alive for more than two years after the probate of his *202father’s will, was barred from caveating the will, and his heirs, having no rights which they could assert during his lifetime, are likewise barred!

The judgment is affirmed, with costs. Affirmed.

On April 28, 1914, a motion for a rehearing was denied;