30 A. 470 | R.I. | 1894
Susan C. Kenyon died in August, 1893, leaving a will, from the probate of which her husband, George N. Kenyon, appealed. At the time of taking the appeal he was serving a sentence of fifteen years imprisonment in the state prison for the crime of manslaughter, imposed by this court at the March Term, 1893, which sentence is still in force. A motion to dismiss the appeal was granted by the Common Pleas Division on two grounds: first, that said George N. Kenyon was incapacitated, by reason of his sentence and imprisonment to take the appeal or to sign and seal the appeal bond required by law; and second, that said George N. Kenyon is not of capacity to administer upon his wife's personal estate, and hence he cannot take that surplus of her estate after payment of her debts, because no children having been born of the marriage, he has no title by courtesy in the real estate, and cannot take any of the personal estate if it be found that she died intestate.
The two questions thus raised are whether the appellant had the right to take an appeal, and whether he has any interest in her property to entitle him to contest the validity of her will. Undoubtedly under the common law of England a person convicted of a felony could not maintain an action. This rule was founded upon the reason that as the conviction worked a forfeiture of goods to the crown, he had no longer any property to sue for. But under our law, Pub. Stat. R.I. cap. 248, § 34, no conviction or sentence for any offense whatsoever works a forfeiture of estate. The reason for the common law rule does not here exist, and an enforcement of it might practically work a forfeiture of estate. Indeed, this case is a plain example of the possibility. Here, assuming the appellant's interest in the estate and the invalidity *592
of the will, he is the party to take an appeal, and it must be taken within forty days from the probate.1 If it should be held that his conviction deprives him of the right to appeal, then he would thereby also be deprived of the power ever to enforce his right to the property itself. Notwithstanding the difficulties which may attend cases of this kind, such a rule would be contrary to the spirit of the statute and unsupported by the reason upon which it was originally based. A convict is neither civilly dead, nor deprived of his rights of property; and, if this be so, he should be entitled to enforce such right when it is necessary to do so. See Planter v. Sherwood, 6 Johns. Ch. 118; Cannon v. Windsor, 1 Houst. (Del.) 143; DadeCoal Co. v. Haslett,
The next question is whether the appellant had sufficient interest in the estate of his deceased wife to enable him to claim an appeal. The counsel for the appellees correctly says in his brief: "Under the common law the personal estate of the wife became the husband's, and on her death he could administer on her estate and retain the surplus after paying her funeral charges; and if another administered he held the surplus as trustee for the husband." Hoppiss v. Eskridge, 2 Ired. Eq. 54; Whitaker
v. Whitaker, 6 Johns. 112; Bryan v. Rooks,
We come then to the question whether the legislation in regard to the property of married women has changed the common law rule in cases of intestacy. Under the law of 1844, (Pub. Laws 1844, p. 270,) the property of a married woman was so far secured to her own use as to exempt it from liability for the debts of her husband; and in Gen. Stat. R.I. 1872, cap. 152, § 1, it was absolutely secured to her sole and separate use. As to real estate, this court expresses the opinion, In re the VotingLaws,
SECTION 1. Any person aggrieved by any order or decree of any court of probate, or of any town council, may, unless provision be made to the contrary, appeal therefrom to the supreme court, within forty days next after such order or decree shall have been made, upon giving bond, signed by himself, or by some one in his behalf, to such court of probate or town council, with surety or sureties, satisfactory to such court or council, or to the clerk thereof if such court or council shall not then be in session, to prosecute such appeal with effect, or, in default thereof, to pay all intervening costs and damages and such costs as the respective division of the supreme court shall tax against the appellant.