113 A. 467 | R.I. | 1921
The case is in this court on the bill of exceptions of the appellants, Luke Connole et al., whereby exception is taken to a decision of a justice of the Superior Court denying and dismissing appellants' appeal from a decree of the Probate Court of the City of Cranston.
The appellee, Clara Connole, is the widow of one John Connole, who died in 1906, intestate and without issue. The appellants are heirs at law of John Connole. Luke Connole was appointed administrator of the estate of John Connole and his final account was allowed long prior to the time when proceedings to secure dower were begun by the widow. The real estate consisted of three cottage houses on one plat, and three or four small parcels of unimproved land from which no income was derived. For a number of years Luke Connole collected the rents from the tenants of the cottage houses and, after deducting therefrom charges for taxes, etc., paid over to the widow one third of the net income.
In September, 1919, the widow filed a petition in the Probate Court of the City of Cranston for the assignment of dower, and at the same time another petition for an estate for her support in addition to dower, as provided by Section 9, Chapter 313, General Laws. After several hearings on the petition for assignment of dower, the probate court by its decree assigned as dower to the widow "one third of the net rents and profits arising out of said estate as provided by Section 17, Chapter 329, General Laws of Rhode Island, 1909, payable on or before the 10th day of each and every month hereafter, said sum to be and remain, until further order of this Court, a fixed charge upon the estate of which said John Connole died seised and possessed." This decree before entry was assented to by counsel for the heirs and counsel for the widow. Later the probate court, after a *472
hearing on the second petition, assigned to the widow as an estate in addition to dower the three cottages. No question is raised as to the particular provisions of this second decree, as the deceased left no issue and the property was not required for the payment of debts. The claim is that the assignment of dower was invalid and consequently the probate court had no jurisdiction to enter any decree for additional allowance. As the probate court has authority to make an additional allowance to the widow only after assignment of dower has first been made (Mathewson v. Mathewson,
The proceeding before the probate court in effect was an action at law. Willock v. Willock,
In Sheffield v. Cooke,
Our conclusion is that the assignment of dower was valid.
The appellants' exception is overruled and the case is remitted to the Superior Court with direction to affirm the decree of the said Probate Court of the City of Cranston from which the appeal was taken.