167 A. 544 | Conn. | 1933
On January 5th, 1932, the Court of Probate for the district of East Hampton approved, allowed, and admitted to probate an instrument as the last will and testament of Ellen S. Starr, and, under § 4900 of the General Statutes, revoked the appointment, previously made, of Harley H. Avery as administrator of the estate. Thereupon he brought an appeal based upon § 4990 of the General Statutes which allows "any person aggrieved by any order, denial or decree of a Court of Probate in any matter, unless otherwise specially provided by law," to appeal therefrom to the Superior Court. Henry S. Starr filed and the court granted a motion that the appeal be erased from the docket on the ground that the appellant had no interest in the decrees appealed from which rendered him aggrieved by them within the meaning of the statute. As the appeal is taken as administrator of the estate of the decedent, the appellant was not required to set forth his interest further (Gillette'sAppeal,
The issue presented by the appeal to this court is whether a person removed as administrator because of the admission to probate of an instrument found by the Court of Probate to be the last will and testament of the deceased is "aggrieved" within § 4990 by the decrees admitting the will to probate and revoking his appointment as administrator. One who has a pecuniary interest which the decree affects injuriously is within the statute. Woodbury's Appeal,
It is also the duty of the executor named in a will to present it for probate and endeavor to procure its admission, and this includes a right of appeal from a *204
decision of the Court of Probate refusing to admit it; however, it is no part of his duty to attack or take ground against its validity. Belfield v. Booth,
The foregoing decisions fairly illustrate the extent and the limitations of the right here involved. It is to be observed that persons as to whom a right of appeal is recognized are those who are acting in a fiduciary or representative capacity under a subsisting appointment which has not been terminated, by revocation or otherwise, and who therefore are under present *205
duty to protect the estate from diversion. Smith
v. Sherman,
Cairns v. Donahey,
However, this appeal is taken in a representative capacity only and we cannot recognize any duty and right in the appellant to contend, by appeal, against the will, on behalf of heirs who so far as appears were quite capable and competent to protect themselves had their interests dictated such a course. The trial court was correct in holding that Avery, having been removed as administrator, has no interest which entitles him to bring this appeal, and in granting the motion to erase it.
There is no error.
In this opinion the other judges concurred.