Smith v. Chaney

Emery, J. Samuel N. Young died May 2, 1898, leaving in existence behind him two instruments in writing, each purporting to be duly executed by him as his last will and testament. In the [218] ' earlier instrument dated June 7,1895, the appellants Albert Smith and Sarah E. Smith were named as residuary legatees. This instrument has not yet been presented for probate. The later instrument dated March 27, 1898, was presented for probate and was allowed as the last will of the deceased by probate decree in August 1898. Albert and Sarah E. Smith claimed an appeal, which appeal the executors under the later instrument asked to have dismissed. I. The first question is whether the two Smiths, named as residuary legatees in the earlier instrument purporting to be a will, can appeal from the decree establishing the later instrument as the operative will. They can if they would be concluded by that decree, (if allowed to stand), from maintaining any claim of their own to rights or interests in the property of the deceased. The earlier instrument purported to give them rights and interests in the property which would become vested upon the allowance of that instrument as an operative will. If the decree in question had been against the later instrument, then the appellants could have presented the earlier instrument under which they claim and must have been heard as to its validity as the operative will. The decree as passed, however, by establishing the later instrument as the operative will, also establishes that the earlier instrument is without force or effect. So long as the decree stands, it is a bar against all proceedings to establish the earlier instrument as the operative will and the appellants, claiming under this earlier instrument, cannot be heard in its support. They are therefore ‘‘aggrieved.” They are entitled to be heard in opposition to a decree that strikes down their written instrument of title which purports upon its face to be valid. It is urged that the appellants cannot be heard to oppose the later instrument until they have presented the earlier instrument for probate, since non constat they would ever present it. It would be futile, however, to begin proceedings for the establishment of the earlier instrument until the validity of the later instrument was determined. If such proceedings were begun and the earlier [219] instrument established, the proceedings and decree might all be nullified by subsequent proceedings and decree establishing the later instrument. The natural and proper procedure would be to consider, first, the later instrument and only in case that is rejected, to consider, next, the earlier instrument. Parties claiming under the instrument to be last considered, if at all, are entitled to be heard against the instrument to be first considered, since only in case that instrument is rejected, can they bring forward their own with any permanent effect. The question here determined was considered by the Connecticut court in Buckingham’s Appeal, 57 Conn. 544, with the same result. In Hall v. Hall, 17 Pick. 373, it was held that a person named as legatee in a prior will not presented for probate had such an interest that he was disqualified from testifying in the hearing upon the probate of a later will. II. In claiming an appeal, however, these appellants described themselves as heirs at law of the testator, while in fact they were not heirs, but their interest was solely under the earlier instrument as stated. They have asked leave to amend their statement of their interest accordingly. The appellees insist that their statement in that respect cannot be amended,' — that they must stand or fall by it, — and if they have stated their interest incorrectly, however inadvertently, they must be dismissed without being heard, although in fact they may have sufficient interest in the matter. It may be that the “reasons of appeal” filed in the probate court below should be adhered to in this court without enlargement or change, so far as they are statements of the questions raised and the errors made in the court below. The errors of the court are the real reasons of appeal, and the appellee may perhaps insist that the appellant shall be confined to such errors as he has stated. But a mere description of the appellant’s status or interest does not state an error of the court, nor a reason of appeal. While one cannot appeal without having an interest, he does not appeal because of that interest, but because of the errors of the court injuriously affecting that interest. We do not think a misdescrip [220] tion of his interest, made perhaps inadvertently in bis claim of appeal, shuts him out from alleging and showing in the appellate court, his true interest. In Smith v. Bradstreet, 16 Pick. 264, after an appeal had been dismissed for want of sufficient interest alleged, the appellant was allowed to amend his claim of appeal by stating other facts showing an interest and thereupon the court sustained the appeal. In Danby v. Dawes, 81 Maine, 30, it was contended that the original petition did not contain allegations of certain essential jurisdictional facts. The appellate court, however, found the essential facts to exist though not alleged in the petition and held that such findings would be as much a part of the record as the petition would be. The decree in favor of the petitioner was affirmed. In this case the appellants can file in the appellate court new and amended statement of their interest which, if found to be true by the appellate court, will become a part of the record, so far as necessary. Motion to dismiss denied. Gase to stand for trial.