Battey v. Mathewson

Stiness, C. J. (1) The husband of Mabel Battey Mathewson, deceased, was appointed administrator of her estate, and her father appealed from the decree of appointment. The appeal was dismissed in the Common Pleas Division, and the appellant asks for a new trial. • The record shows that the case was heard on a motion to amend the reasons of appeal, and *475 dismissed. We find no written motion showing what amendment was proposed, nor any statement of it in the petition for a new trial. Franklin P. Owen, for appellant. Charles A. Wilson, for appellee. The appellant’s brief assumes that he was both father and creditor of the deceased, and we may infer that such was the nature of the amendment. The court had power to grant such amendment,. Gen. Laws cap. 248, § 6, hut of course it would not do so if the reasons of appeal, as amended, would not state a case. The only ground alleged for a new trial is that the dismissal was contrary to law. ’We think that the appeal was properly dismissed. . (2) Gen. Laws, cap. 212, § 9, says that a husband shall he entitled as of course to administration of the personal estate of his wife in case of her intestacy. In Weaver v. Chace, 5 R. I. 356, this right was held to extend even to a non-resident husband. There may he cases where a husband cannot administer. Such a possibility was recognized in Kenyon v. Saunders, 18 R. I. 590, where the husband was a convict in the state prison; and it was also suggested that a husband might be absent, non compos, or under disability which would render administration by him impossible. In such case, of course, another could be appointed. But neither the record in this case nor any suggested amendment shows anything to defeat the husband’s right. It does not appear that there was a will, or that the husband is under any disability which would deprive him of the right given to him by statute. This being' so, there was nothing to try. The appeal could have no effect, and hence the appellant is not in law aggrieved. The .mere fact that he is father or- creditor of the deceased could not affect the right of appointment. The appeal was therefore properly dismissed, as not lawfully taken. Gannon v. Doyle, 16 R. I. 726. Petition dismissed.