Saunders v. Denison

Church, Ch. J. A motion was made in the superior court, that this appeal should be erased from the docket. The first reason suggested, in support of the motion, is, that the records of the court of probate do not show any interest in the appellant in the decree or order appealed from ; and therefore, the appeal is void. But, as we understand the record, this reason is not true in fact. It appears that the appeal was taken by the appellant, as a creditor of the deceased, from the doings of the commissioners on his estate, in allowing the sum of ten thousand dollars, as a debt due from the estate to the executor; and the appellant claimed, that this was an illegal and unjust demand, and ought not to have been allowed. The interest of the appellant appears very dearly here. Every creditor of an estate represented insolvent, has, prima facie, an interest in the settlement of it. The allowance of such a claim as this, or of any other, may render the estate insolvent in fact; and if already so, may, and necessarily must, diminish the dividend to which the other creditors are entitled. In the case of Swan v. Wheeler, 4 Day, 137. no other interest appeared on the face of the appeal, than that the appellant was a son and heir of the deceased ; and that sufficiently showed that he had an interest. The extent of the appellant’s interest, and how it is affected, by the order appealed from, is to be averred in the reasons filed in the superior court. In a suit at common law, the fact that the plaintiff has an interest, appears on the writ ; but the particular circumstances, disclosing a right of recovery, appear only by proper traversable allegations in the declaration. The analogy is obvious. A second reason for erasing this cause from the docket, is, [525] that since it has been pending, the executor has tendered to the appellant the full amount of the debt claimed by him to be due, and has the money ready in court to pay it; and so the appellant is no longer a creditor, and can have no further interest to prosecute this appeal. This is a new fact, brought upon the record, by a traversable and issuable averment. We do not erase a cause from the docket, upon motion, unless the ground appears upon the record, when it is entered in the docket; but if a matter is stated as a cause of erasure, which is rather a matter of plea, as in this case, than of motion, we leave the parties to try the truth or sufficiency of the new facts alleged, upon an issue formed for that purpose. Amidown v. Peck, II Metc. 467. State v. Wickwire, 19 Conn. R. 477. We do not assent to the claim of the executor, in this case, that the tender of the money to the appellant has paid his debt, and thereby has destroyed his interest in this appeal. If a debt be payable in collateral articles, a tender of them, at the time and place, will extinguish the claim ; but a money demand is not satisfied by a tender, especially after it is due, unless the money be accepted. The appellant is still a creditor, and has an interest in the dividend to be declared, and may have good reasons for refusing the money tendered, which he is not bound to disclose. All the creditors of this estate have an interest in contesting this large demand ; and its validity could as well be examined upon an appeal taken by one creditor, as upon as many appeals as there were creditors interested, and at a much less expense ; and therefore, such a course is the more to be approved. If such has been the arrangement between the creditors, it would be giving countenance to a mere trick-now to defeat it, in the manner attempted, after perhaps, the time of appeal for all other creditors had expired. In chancery proceedings, it is not unusual for some creditors to prosecute a bill in equity, in their own names, to enforce a remedy common to all, and for the benefit of all. New-London Bank v. Lee, 11 Conn. R. 112. The appellant, in his reasons, sets up another ground of appeal, and another reason why he continues to prosecute it. Not that he is a creditor of the estate, but that he is a purchaser from the deceased. He claims, that the deceased, in [526] his life-time, conveyed certain lands and buildings to him and Shoonmaker, of the value of four thousand dollars, and which the executor has caused to be inventoried as a part of the estate of the deceased, and which, he claims, is necessary, and threatens to sell, to pay the debts due from the estate, including the demand in controversy. The appellee, the executor, insists, that these facts constitute no good reason for proceeding with this appeal, and do not fortify or support the appeal. The deed from the deceased to Saunders and Schoonmaker, was probably a voluntary deed, good as between the parties, and such as claim under them, but void as to creditors. If the appellant can show, that the debts due from the estate do not require the sale of this land, then he protects his title to it. If this would have been a good ground of appeal originally; if an interest of this nature is such as the statute contemplates as necessary to give a right of appeal from an order or decree of a court of probate; then, we think, it may well be urged now as a good reason for proceeding with this appeal. Our statute authorizing appeals from probate, is broad enough in its terms, to include a case like this. The right of appeal is given to “ all persons aggrieved, by any order, denial or decree,” or by the doings of commissioners. Stat. p. 368. § 87. p. 370. § 96. If this large demand of the executor, Denison, was allowed, it would become, in the settlement of the estate, a charge upon the land to which the appellant, otherwise, had a good title. He would thus be aggrieved, by the allowance of the claim, not only within the words, but within the meaning of the law. He might, perhaps, without this appeal, have had a right to protect his title against what he supposed to be an illegal and an unjust demand, by a bill in equity; but if he could, we see no good objection to his attempting the same thing, in this more simple and expeditious manner. It is said, however, that, as he appealed only as a creditor, be cannot now prosecute his appeal in any other capacity. But the appellant took his appeal for the sole purpose of putting Denison upon the proof of his debt; and he now prosecutes it, for the same purpose, and no other. This claim of ten thousand dollars is the subject of controversy; and it [527] must be immaterial to the executor, whether Saunders contests it, in one capacity or another. We have already said, that the appeal was well taken ; and if so, we do not well see why it may not be prosecuted for any reason, which still shows an interest in the appellant to controvert the claim in question. In appeals from common law courts, the practice is somewhat analogous, so far as the different constitution of the courts will admit. After a valid appeal from the county to the superior court, the addition of a new count is admissible, if it be consistent with the original cause of action, even if the original count be afterwards abandoned ; and this is the practice of every day. Less regard is paid to the forms of proceeding in courts of probate, than in the common law courts. The superior court will be advised to disallow the motion to erase. In this opinion the other judges concurred. Motion denied.