41 Conn. 329 | Conn. | 1874
The sole question raised in the record and discussed before us is, whether the words “ any action,” as used in section 95, chapter 6, of title 1, of the General Statutes, revision of 1866, include an appeal from a decree of a court of probate refusing to accept and admit to probate the last will of a deceased testator. This, in the absence of precedents, and of practical exposition, depends upon whether a technical construction is given to the words in question.
These courts have existed as a material part of our judicial system from a period anterior to the earliest reports of adjudged cases in this state, and a large part of the most important' litigation in our higher courts originates with them. Appeals from their decrees are so common, and the questions involved in them often of such great pecuniary magnitude, that the legislature may very properly have intended to embrace them in that section, and the presumption that they did so intend is strongly aided by the general language used. Indeed it could hardly have been more comprehensive and inclusive, unless it was designed to be technical and restrictive. The object sought to be accomplished was the preservation of existing remedies and rights of action, and considering that salutary purpose we think a, liberal construction should be given to the words. Besides, the claim of the plaintiff in error that if the appeal is not a£ action there is no rule requiring it to abate on the death of the appellant or interfering with the right of the executor or administrator to enter, unless it arises in analogy to the common law rule in relation to personal actions, and that if analogy subjects such an appeal to the same disabilities as actions at common law it ought also to deliver it from such disability when actions are so delivered by statute, is not without reason and force.
This section has been in existence since 1753, and is of great practical importance, and it is worthy of note that it has never received a judicial interpretation by this court. No case has been cited from our reports, and it is believed that none exists, in which the precise question now involved
In Gray v. Webb, 2 Root, 257, the Supei’ior Court decided that a petition for foreclosure was abated by the death of the petitioner. No reasons are given for the decision, and there is nothing in the report of the case which shows the claims made by counsel or considered by the court. It may have been adjudged that a bill in chancery was not an action within the meaning of our statute, but whether so or otherwise does not distinctly appear; and a case decided by the Superior Court, and thus defectively reported, is certainly not a precedent deserving much consideration in this court upon the particular issue which is pending; though, for the purposes of this question, little distinction can on principle be made between a bill in chancery and an appeal from probate.
It is said by the defendants in error that in section 126 of chapter 9, of the title of the statutes before cited, the legislature have in. terms made a distinction between actions and appeals from probate, and that thereby a practical construction favorable to their claim has been established. It is true they are separately mentioned for the purpose of describing the classes of cases in which issues on matters of fact are
We are also referred by the defendants in error to the case of Woodward v. Skolfield, 4 Mass., 375, which arose under a statute passed in 1783, said to be similar in terms to our own, with respect to the survival of causes of action on the death of a party and to the right of the administrator to enter, in which it was held that a petition for a review was abated by the death of the petitioner pending the petition. The original action was assumpsit, a personal action, and a purely common law remedy. The opinion discloses no reasons, and cites no authority, and the case presents no claims of counsel in the argument, and the report of it is in all respects as meager as that of Gray v. Webb before referred to.
We have not had the statutes of Massachusetts before us and may not fully comprehend the precise character of the proceeding referred to, but understand the petition spoken of to be preliminary to a writ of review in which stay of execution might be ordered, and that the latter process was in the nature of a writ of error, on the trial of which the merits of the original cause were open to complete and final adjudication. If we are correct in this, we differ from that very respectable and learned court, whose decisions are always and justly regarded with great deference, upon the propriety of making a distinction so technical as to hold that the action terminated with the judgment in the court below, and that, the subsequent proceedings for a review of the judgment were so foreign to the original cause as not substantially to form a continuation and part of the action.
In disposing of this question we are inclined to so far disregard the technicalities and analogies of the common law as to place a liberal construction on the statute, and consider
There is manifest error in the judgment complained of.
In this opinion the other judges concurred.
Note.—This case having been submitted on briefs, Judge Carpenter joined in the decision, though not present at the term.