*1 al., et Anthony William H. Edwards J. Ranalli vs. Vermiglia Ranalli. the Estate Co-Adm’rs al., Co-Adm’rs H. Edwards et vs. William Same Ranalli. Estate Salvatore al., Co-Adm’rs et H. vs. William Edwards Same Ranalli. Salvatore Estate of JULY Joslin, C.J., Roberts, Condon, JJ. Powers and Present: *2 appeals from decrees of J. These are three Roberts, granting petitions of probate court of the Pawtucket permission co-administrators two estates respective sell the interests of the decedents certain effecting prompt described real purpose estate and efficient settlement of were appeals such estates. sitting de by justice heard court superior novo affirming without a who thereafter entered a decree jury, the decree of court in each each probate instance. appellant case the has bill of there- prosecuted a from to this court.
It disputed appellees duly appointed are the qualified and Vermiglia co-administrators estate Ranalli 'and co-administrators d.b.mc.t.a. of the estate Salvatore Ranalli, who had and wife been husband appellant whose heirs-at-law include It agreed here. the administration of the estate of Salvatore involved disposition parcels of estate, several real two which were part by owned Vermiglia, and the heirs- agree at-law were unable to on a disposition realty. for such For petitioned this reason the probate co-administrators court for pursuant sell the real estate to G. L. 1956, §33-12-6. The appellant, however, appears to con- petitions tend that these were filed under §33-19-3.
They were heard and by determined the city solicitor Pawtucket probate by appointment court virtue of his to that office specifically purpose. appointment such His was made the mayor purported who to act city, under the authority con- chap. him in ferred sec. 2-500, of the city charter appoint that officer act probate judge whenever jurisdiction the latter from was absent or incapacitated. record discloses each case mayor certified probate the absence jurisdiction. the de inter contends, alia, In this court Expressly superior are null and void. court crees appeals superior conceding that hears instant cases novo, argues he decrees affirm they purport decrees void because entered alleges, he are void because which, difficult of that court. usurper the office Character of the de novo1 as to to reconcile concession conclu appellant’s court with hearing jurisdiction is appellate an sion its exercise decrees sub null with reference rendered *3 of we take because the view However, ordinate tribunal. city charter provisions of the legal the effect as to mayor designate acting probate to an which authorize the whether circumstances, in need not decide specific judge probate ap of to' hear jurisdiction the the probate court peals properly can be exercised where the jurisdiction. in of acted excess requires of the of city 2-500 the charter election Section city a council judge probate majority the sickness, “In provides further that the absence ineligibility judge or or city disability the other appoint the mayor may city the the probate serve, court to * * * perform judge during to the duties of said solicitor n inability ineligibility or other or sickness, absence clearly charter an judge.” Section is said 2-500 power judge probate elect a delegated exercise to designation provide also purporting to judge capacity to act that when the elected solicitor any to the reasons out serve set statute. unable for the argues provision charter petitioner acting judge probate being of an is void as- designation of G. L. provisions 1956, §8-9-5, wherein contrary to having delegated legis §8-9-4 local legislature, probate judges specified to elect authority latures provides probate circumstances, judge where
397 perform is unable to function de- duties, body the town volves council exercised if judge arguing had not been elected. He relies in so Krzak, took in State on view this court R. I. 156, A.2d rule amendment, the home called, art. XXVIII the constitution amendments to state, impair supremacy general does not assembly in strictly matters other than those of local con- perceive cern. We do not to be the issue here raised. Rather, the question legislative before is whether us intent, as disclosed dele- statute, terms gate probate judges elect to the cities and but towns withhold therefrom the authority desig- nate an acting when the elected unable to any specified serve reasons. We cannot agree that the statute limit discloses such an intent to so delegated designate judges of probate. legislature, delegating after to the city and town councils the to elect probate judges what is now §8-9-4, provide went on to §8-9-5 what is now as follows: “Unless provided, whenever city or town any party is a or is interested in *4 case arising town, his or is absent or perform unable to' the duties, town perform council such town shall duties the same manner as if judge .probate no had been elected.” by The latter section then way proviso an exception provision makes .to the quoted above of the town and the city Newport, spec- Bristol providing ifically that in each of municipalities these when judge the probate is unable to serve the duties of office, the they performed by will be a municipal officer designated .statute. The the thrust of appellant's argument is that the exceptions way enactment by these of proviso, dis- an intent part on .the closes legislature to reserve to the to provide designation itself of acting probate judges exceptions .provision to the of the statute act as a the town council shall
that, judge, absent probate court. laws, of our general
Prior to the codification and 8-9-5 statutory provisions designated as §§8-9-4 therein chap. 568, single enactment. See G. L. constituted a a clear discloses whole, When read as a the enactment §3. to the delegate to cities legislature intent on the part within the designate who, to and towns the administration of charged with municipality, read in difficult to this probate law the state. It is provided” being phrase context “Unless to authority grant preceding intended to limit exercising part from legislatures and to bar them local by statute, delegated to them thus munici- designate within the is, to phrase our “Unless otherwise pality. by taken or town contemplates action provided” provide judicial system against a failure of council relating to up by legislature administer law -the set from the the estates of decedents which could result absence particular in- inability elected serve or legislative intent, our brief, the stance. judicial power administer the such instances legislative mandate express would revert
probate law preclude thereby failure city or town council to the the decisions which so substan- judicial system, rights. property affect tially in appellant’s merit contention that
There is no its intent author- made clear reserve itself legislature designation judges provide pro- ity to specific pro- its enactment bate of the town Bristol and the the case vision Conceding exception that an may properly be Newport. *5 ascertaining true meaning the statute, considered previous provision put something in to which “it cannot Batcheller, Batcheller-Durkee there before.” not the ex- short, R. I. In 45, are exempt these of an intent ceptions significant only provision. pertinent towns challenged pursuant The were entered decrees here petitions sell co-administrators’ effecting “of purpose real estate of their for the decedents a It is clear prompt and efficient settlement estate.” under the terms of petitions brought §33- these were 12-6 the sale which, pertinent part, provide though real estate of personal property a decedent even expenses sufficient to pay the debts of the estate and of its administration “whenever discretion action effecting court such seems desirable a prompt and efficient of the estate; settlement provided, however, given shall be with reference real specifically estate devised. contends that under the court 'this statute cannot confer an administrator sell real in a estate vests commissioner acting under bill partition of real agree estate. We the statute was not intended to' have this effect. The statute its terms authority upon confers to permit .the court sale the real estate of a decedent when in discretion such action will prompt efficient settlement estate. short, legislature, providing for the devolution of estates, contemplated situations which settlement more likely accomplished where a sale of the realty decedent is ordered and conferred power upon within its sound discretion. public interest the estates of be decedents promptly property settled and that rights of heirs-at- legislative be fixed. It is within the law to provide delay in against reaching undue these ends by authorizing to order sale of the decedent’s real estate. legislature having committed the matter the sale real estate decedents in these circumstances *6 áOO review court, will the sound discretion it has whether only thereof to ascertain
court’s exercise judicial our be view been abused. We stated it to considera- when reasonable discretion exercised properly is of all rights to the given tion to all of the and is facts Baker, v. Manekofsky in parties action. involved in our discloses, R. I. record The instant 381. the factual gave full consideration the court discretion exercising in its here 'and that situation involved of the effect of its action on interests light did its con- clearly and did confine of all the heirs-at-law It appears alone. the interests sideration to which court from the record that evidence parties’ stipulation relied the record reason “in view of realty sought sell the family difficulty members of the had had the fact that * * arranging things among themselves superior court opinion our therefore sound enter- instant its discretion cases exercised we take under consideration. Because this ing the decrees exceptions should overruled. view, we conclude be overruled, All of each appellant’s proceed- is remitted to the ease ings. I part. J., concurring concur C. court’s
Condon, but I do not merits subscribe its construc decision on the provided” G. L. of the words “Unless tion ques I am the However, 1956, §8-9-5. determination before properly was not tion event it solicitor was apparent since facto and as such the validity in question could not be called collater appointment of his him or on appeal before -the ally-in proceedings only question This could be raised directly superior court. Angell Steere, a party. he is 16 R. to which I. in a case accepted is a Di- widely This rule. Commonwealth v. Stasio, 297 347; Jur., Officers, §495, Mass. 43 Am. Public *7 p. 241. In the cited case the court at 351: “The page said rights persoixs ought prejudiced they third ixot to be would 'be if the acts of a were rendered officer void facto by undisclosed circumstances and secret flaws his title. basis is secondary to the main issues on trial. An upon attack the authority of a officer pulblic commonly possible by proceeding direct to test his title -in to office or other where question actions is raised directly.”
Private persons are not permitted question the title of such officers. It Shelby was said in County, Norton v. U. S. 425, “For 441, that good order and peace society their authority is be respected and obeyed until in some regular prescribed mode by law their in- title is vestigated and determined.”
In the bax*, at I therefore, think it would been have more consistent with generally accepted principle of law “established from period, the earliest repeatedly * * confirmed, by an unbroken current *,” decisions Am. Jur., Public Officers, p. §495, note 242, if the court had refused to consider appellant’s collateral upon attack validity acting probate judge’s appointment. By it refusing, quite would have properly avoided the neces- sity construing and conferring §8-9-5 it has done its construction thereof an extremely broad legislative municipalities of the state contrary, my the clear intent of legislature. Berberian,
Pontarelli & Aram K. Berberian, for appellant. Angelí, William Edwards, Edwards & 'H. Hogan Hogan, & ' Hogan, appellees. T. Edward