Wentworth v. Treanor

31 N.H. 528 | Superior Court of New Hampshire | 1855

Eastman, J.

Both parties rely upon the same statute as sustaining them in their views of the question presented. The section is as follows: “ Any person aggrieved by any decree, order, appointment, grant or denial of any judge of probate, which may conclude his interest, and which is not strictly interlocutory, may appeal therefrom to the superior court of judicature, next to be holden in the county.” Rev. Stat., ch. 170, § 1.

Was this decree, in the words of the statute, “ strictly interlocutory,” from which an appeal could not properly be taken, or was it, on the contrary, one of those matters which, in contemplation of the statute, may be examined by this court on appeal ?

At common law, all the various decisions of the court from the commencement of the suit till the final judgment, have usually been termed interlocutory. In chancery, also, all the decrees that precede the final one, are generally spoken of in the books in the same way. And likewise in the ecclesiastical courts, “ interlocutory decrees” and “ final sentences,” are expressions used as having a somewhat similar meaning. But it is quite evident that the many decrees and orders that are made by a judge of probate, in the settlement of estates, prior to the final decree of distribution, although in general phrase they may be termed interlocutory, are yet not of that “ strictly interlocutory” character spoken of in the statute, that can preclude an appeal. Whenever any decree, order, appointment, grant or denial is made by any judge of probate, which concludes the interest of a party, or which may be final upon that question, and is matter of record, the statute gives an appeal. The decree of distribution or division of an estate, which is usually the last one made, may not prove to be such. The bonds that have been given may require to be prosecuted for the benefit of the heirs or creditors, and decrees may have to be made in regard to them.

The giving of many notices in the process of settling an estate, decisions and rulings made by the judge of probate in hearings before him, which do not go upon the records, and orders of a similar character, where no decree is entered and no record of the decision made, may well enough be regarded as interlocutory matters, within the meaning of the statute. Although they may lead to decrees, yet they conclude the interests of no one until a formal decree is made and entered upon the record. And whenever an appointment of an executor, administrator or guardian is made, or a will proved and allowed; whenever license to sell property is given ; when an account is settled or property ordered to be divided, as well as in many other matters that might be enumerated, where decrees are made, which, in their nature, are final upon those questions, and which conclude the interests of the parties to that extent, an appeal may be taken. All these orders and decrees terminate the matter to that extent, and so far conclude the interests of the parties. They are final decisions upon those questions, and cannot be again opened for examination, unless by appeal. The several steps taken in arriving at these decrees and orders, or appointments, may be strictly interlocutory, but each decree or order which determines and settles the matter in controversy, is to that extent conclusive, unless an appeal be taken.

In this case, the will of Richard P. Treanor had been proved and allowed in common form, without notice, and the decree approving the same, which was made on the 25th day of October, 1843, was unappealed from. By this will, William G. Wentworth was appointed executor, and had likewise a legacy given him.

On the 7th day of March, 1854, more than ten years after the will had been proved, the petition for a reexamination of the probate of the will was presented, purporting to be signed by the heirs of the testator, by their attorney; and, on the 30th day of September following, after notice given and hearing had, a decree was passed, that the probate of the will should be reexamined. From this decree an appeal was taken, which it is now moved may be dismissed.

If the probate of a will is not contested, the judge of probate may allow and approve the same, in common form, upon the testimony of one of the subscribing witnesses thereto. But any party interested is entitled to have the probate of a will which has been proved without notice, reexamined, and the will proved in solemn form, before the court of probate, at any time within one year of such probate, if no appeal from the probate has been prosecuted before the superior court. These provisions may be found in the 6th and 7th sections of chapter 157 of the Revised Statutes. Section 9 of the same chapter is as follows : “ Any minor, insane person, married woman, or person out of the United States, or their legal representatives, shall be entitled to have the probate of any will, proved without notice, reexamined at any time within one year after the removal of the disability.”

It is upon this 9th section, and upon that particular clause of it making provisions in favor of persons out of the United States, that the petitioners found their right to have the probate of this will reexamined. ' They do not come in under the general provisions giving the right of re-examination within one year after probate in common form, but upon this 9th section, which, they allege, has saved their rights for the ten years. It becomes, then, a question of importance to all interested in the estate, whether the petitioners are persons entitled to the saving benefits of the statute, and whether they are regularly in the probate court. And the executor has the right to have that question determined before the probate of the will shall be reexamined. If the petitioners do not make it appear that they have the right to a reexamination of the probate of the will, then a reexamination should not be had. Their right to have a reamination made should first be settled, before the reexamination takes place. Such was the opinion of the judge of probate, and he accordingly heard that question on notice to the parties, and passed his decree upon it. Was that decree “ strictly interlocutory ?” Or was it one involving important questions and settling important rights, and conclusive of the interests of the parties, as provided by the 9th section ? We think the latter. This estate was probably settled in regular course, and under the ordinary provisions of the statute, several years since. These petitioners claim the right to reexamine that settlement under the special provisions of the statute; and that is a question to be determined, and upon which a decree is to be passed, before the reexamination can properly be had. It is a distinct and definite question, arising upon a particular statute, and a very important question to these parties. It may affect their interests, so far as this estate is concerned, vitally. If the decree had been that the petitioners have not the right to a reexamination, and the petition had accordingly been denied, we should undoubtedly hold that an appeal could be taken from such a decree. If they could have no appeal, the decree would be final and conclusive, and their rights would be entirely cut off. It would seem manifest that such a decree would not be interlocutory as to them. And can the decision of a question be interlocutory as to one party, and not so as to the other ? Can one decree be made upon precisely the same question and upon the same identical point, which is not interlocutory, and another which is 1 Can the decision of the court to receive a petition be interlocutory, while its decision to reject the same petition is not so ?

We have formed no opinion whatever as to the merits of this petition, nor have we considered the questions stated in the reasons for appeal, any further than to see that the question of the right of the petitioners to have this will reexamined is an important one, both to them and to those who may take under the will; and we are of opinion that a decree upon this petition is not one of those “ strictly interlocutory ” matters contemplated by the statute, from which an appeal does not lie; but that a decree being passed upon it, either for or against the petitioners, an appeal may well be taken, and, consequently, the motion to dismiss this appeal must be denied.