86 A. 897 | R.I. | 1913
On the 26th of August, 1912, the court of probate of the town of East Providence appointed Arthur Cushing, of North Providence, guardian of the estate in Rhode Island of George W. Hall, a person of full age and a resident of the town of Westport, in the Commonwealth of Massachusetts.
The petition was presented by said Arthur Cushing as friend of said George W. Hall, who joined in the petition and who, as shown by the record, was present at the hearing, was sworn, and assented to the appointment. The decree of the court of probate shows that Hall was adjudged to be a person lacking in discretion in managing his estate and likely to bring himself or family to want or suffering and to render himself or family chargeable. Mr. Cushing duly qualified as such guardian by giving the bond required by the court of probate. Under date of September 27th, 1912, Samuel Hadfield of Fall River, in said commonwealth, representing himself to be the duly appointed guardian of Rita Fanning, the granddaughter and sole plaintiffs were followed almost immediately by the purchase of the property by Mr. Flynn for the sum of $11,000. It is not necessary, in order to entitle the plaintiffs to a guardian *308 as aforesaid, in his capacity as guardian as aforesaid, claimed an appeal to the Superior Court and in due time filed his reasons of appeal in the Superior Court as follows, namely: "1st. That said probate court was without jurisdiction or authority to act on said petition of Arthur Cushing. 2nd. That there was no proper service of notice of said petition. 3d. That in view of the circumstances of this case said Cushing was not a suitable and proper person to be appointed guardian of said Hall." The case was heard by the Presiding Justice, sitting without a jury, December 9, 1912. It appears from the transcript of argument of counsel on file in the case that the counsel for the appellee, while making no formal motion to dismiss, brought to the attention of the court the fact that the appellant was not a person aggrieved under the statute authorizing appeals in such cases. The court, however, declined to act on that suggestion and deciding the case on its merits dismissed the appeal. To the action of the Presiding Justice appellant excepted and has brought his bill of exceptions to this court.
Under date of January 27, 1913, the appellee filed in this court a motion to dismiss the appellant's bill of exceptions on the grounds that it appears by the record that said Samuel Hadfield is not a person aggrieved under the provisions of Section 1 of Chapter 311 of the General Laws, by the decree of the probate court of East Providence appointing said appellee guardian in Rhode Island of the estate of said George W. Hall, and that it appears by said bill of exceptions that said appellant had no interest in the appointment of said appellee as said guardian.
The case has been heard on said motion to dismiss the bill of exceptions. There is no evidence or suggestion even to show that the appellant is aggrieved personally by the decree in question. Indeed, he makes no such claim, but alleges himself to be aggrieved by said decree only in his capacity as guardian of Rita Fanning. *309
Passing the technical question as to whether the appeal has been properly taken in his own name instead of hers and treating the appeal as if taken by her, it is to be regarded as the well settled law of this State that as an expectant heir of her grandfather, now living, said Rita Fanning is not aggrieved by the decree of the probate court in question so as to entitle her to appeal therefrom. See Hamilton v. Court of Probate,
The appellant, however, claims that the motion to dismiss comes too late and that the hearing of the appeal on its merits waived all defects as to parties and to persons. He cites a number of cases in support of his claim. Not many of the cases cited by him are pertinent. Cannon v. McEnanly,
Trinity Church v. Hall,
In the opinion in the case of McKenna v. McKenna, there is no reference to the questions of waiver or estoppel, but the court undoubtedly considered the case on the motion to dismiss the bill of exceptions on the broad ground of the right of the appellant to present the case here. On page 226 the court says: "This question of the right of the petitioner to appeal lies at the threshold of the cause. If the petitioner had no right to appeal from the decree of the probate court he has no right to complain of the rulings of the Superior Court, and no right to bring the case here on exceptions." *311
In that case the motion to dismiss was granted and the case was remitted to the Superior Court, with direction to enter a decree dismissing the appeal for want of jurisdiction. Obviously the term jurisdiction is there used with the meaning that this court had no jurisdiction of the appeal because Sec. 796, C.P.A., now Section 1 of Chapter 311 of the General Laws, gives the right of appeal only to a limited class defined by the word "aggrieved" to which class the petitioner and appellant in that case did not belong, but was before the court merely as an intruder or interloper, without the interest in the proceeding required by said Section 1. The appellant in this case is in a like situation.
We are of the opinion that the motion to dismiss the bill of exceptions was made within proper time. The motion is granted and the appellant's bill of exceptions is dismissed. The case is remitted to the Superior Court, with direction to enter a decree dismissing the appeal for want of jurisdiction.