Administrator of Gilbert's Estate v. Administrator of Howe's Estate

The opinion of the court was delivered by Powers, J. The right to appeal from the judgment of commissioners on the estates of deceased persons, is given and regulated by chapter 58 of the Gen. Sts. The appellants in this case seek to bring themselves within the provisions of § 27 of this chapter, which provides that when an executor or administrator shall decline to appeal from the decision of the commissioners, any person interested in the estate as creditor, devisee, legatee, or heir, may appeal from such decision in the same manner as the executor or administrator might have done, and the same proceedings shall he had in the name of the executor or administrator, &c. It is to be observed that the right of appeal here given to creditors and heirs, is subordinated to the general right to appeal which is given to executors and administrators. It is only when the executor or administrator declines to appeal, that the right attaches under this section. The executor or administrator, as the representative of the estate, is necessarily charged with the duty of looking after the interests of creditors, heirs, and legatees, and would, ordinarily, take any appeal demanded by their interests ; but if he becomes negligent in this regard, this section has provided a remedy for those persons whose interests the executor or administrator should have regarded, and they, in his name, may carry on the [406] proceedings in the appellate court. The statute defines in express terms the nature of the interest which the appellant must have. It would not be seriously claimed that an entire stranger to the estate could take it into the county court, and prolong its settlement by simply claimmg that he was interested in the settlement. He might be interested in it in a great variety of ways, without sustaining the relation to it named in the statute. We think that the statute must receive a literal construction, and that the appellant must, under § 27, belong to some one of the classes enumerated, in order to have any right whatever to appeal. The motion to dismiss sets forth as matter of fact, that the appellants were not interested as creditors, heirs, devisees, or legatees. This motion is not traversed, but, a.s the case shows, was heard as it stands. We infer it was treated as demurred to. If such was the case, in the view which wo take of the statute, it is obvious that the motion should have been sustained. But the parties have treated the case as hinging upon the question whether the interest of the appellant must appear on the face of the record sent up from the probate court, and we think that it should. As we have already seen, the right to appeal is limited to four classes of persons; and it is obvious that the probate court has no jurisdiction to entertain an application for an appeal under § 27, unless the applicant belongs to some one of these classes. That court must find the fact of interest, before they will grant the appeal. When the case comes to the county court, it is to be tried there precisely as it would be tried by the probate court. The same questions are open to inquiry as were before the probate court. Section 22 of the same chapter, provides that when an appeal is taken, the appellant shall procure and file in the county court a certified copy of the record of the allowance or disallowance appealed from, of the applieation for the appeal, and of the allowance of the same, &c.; and the next section provides, that upon filing such copy of record in the county court, that court shall proceed to the trial and determination of the same, according to the rules of law. It is evident that the legislature intended to give the appellate court jurisdiction over all the questions that the probate court might pass upon; and it would be senseless to file in the [407] county court a copy of the application for the appeal (in which the interest of the appellant would be set forth), unless the merits of such application were open to revision. It seems to us clear from the statute, that the judgment of the probate court allowing the appeal, is not conclusive upon the question of the interest of the appellant in the estate, and his consequent right of appeal, but that the county court may inquire into such interest, and that the record sent up from the probate court, must set forth the nature of the interest which the appellant has in the estate. Judgment reversed, motion to dismiss sustained, and ordered to be certified to the probate court.