6 Conn. 355 | Conn. | 1827
It does not appear by the record transmitted, whether the facts stated in the plea in abatement were denied; or whether a demurrer was taken to it ; and in the view which I take of it, it is of no importance.
As to the first objection to the appeal, it seems to me to be insufficient, because, for any thing which appears, the appellants may be jointly interested in procuring a disaffirmance of the decree complained of. If they feel aggrieved, by that decree, on the ground that greater advancements had been made, and ought to have been charged against Sarah Warner and Elizabeth Merwin, or either of them, then they might well complain : and for aught which appears on the plea or the appeal, such may be the case. The 36th sect. of the stat. tit. Estates, p. 208, 9. authorizing appeals, is very broad and extensive : “ And if any person shall be aggrieved, by any order, sentence, denial, or decree or judgment, of a court of probate, in the settlement of an estate, such person may appeal therefrom,” &c. If the reasons for the appeal, when under consideration, furnish weight to this objection, it may then he differently disposed of.
Again, the parties pleading the matter in abatement, are not properly described. Nothing is said respecting the minority of any who plead by guardian ; nor is there any attempt to shew how the appeal should have been taken. In pleas in abatement great strictness is reasonably required, as they are generally dilatory, and entitled to no indulgence.
2. The second objection, viz. that one appeal is taken from distinct decrees, is groundless. To be sure, in Watson v. Hart & al. 2 Root, 59., there is some colour for the objection, although the case does not fully support it. I am, however, satisfied, that the modern and more convenient practice is otherwise. It would be extremely expensive and vexatious to parties, to be obliged to seek a reversal of the various sentences or orders of a court of probate, made in the settlement of an estate, by as many appeals, as there may have been orders, sentences or decrees. The correct course is, to sustain an appeal for as many causes as the party appellant shall see fit to state. The court above gives no judgment, except to affirm or reverse the decree of the court of probate : and it will furnish that court with its reasons, to the end that the court may conform its decisions to the opinion of the higher courts. It is not here intended to suggest, that any appeal may be taken from a de
The plea in abatement being thus settled, I am brought to consider the reasons of the appeal; and the facts found by the superior court in support of it.
It is quite clear, that the articles comprising the account, were delivered and charged as part portion. Such is explicitly declared by the intestate; and had there been nothing else in the case, it would have been impossible to raise a question. The whole doctrine of advancements, according to our usages, supports this idea.
The entries by the deceased in relation to these accounts, viz. that they were discharged and balanced, give rise to the present enquiry. In my opinion, those entries do not, in any degree, vary the case. If they are to receive their greatest possible operation, they would have the effect only of a gift, by the father, to these children ; and in that view, according to the doctrine of this Court, in Hatch & al. v. Straight, 3 Conn. Rep. 31. they must be deemed advancements. Gifts thus made are presumed to be advancements.
But the entries made and relied on, by the appellants, cannot overthrow this presumption. Had the deceased explicitly declared, that they were not to be deemed advancements, or part portion, the case might have been different. But his entries are not to this effect. They seem to me, merely to pursue his intentions, expressed when he made the charges. They were not to stand against the children as debts, but as gifts ; and gifts too, towards their portions.
In this view of the proof, I would advise the superior court, that the appeal do not abate, but that the issue in fact be found in favour of the appellees, and that the judgment of the court of probate complained of, be affirmed.
was at first inclined to the opinion, that the plea in abatement must prevail, on the ground that the appellants had no joint interest: The same persons were not aggrieved, by the same decree. But after further deliberation, he became satisfied, that the plea could not be sustained. On the other point, he concurred, without hesitation.
Plea in abatement over-ruled; and Decree of probate to be affirmed,
