Lancaster's Appeal from Probate

Pardee, J. On December 30th, 1875, the -will of Henry E. Judson, deceased, was presented and proved in the probate court for the district of New Haven, and by that court approved and ordered upon record. On April 28th, 1876, Frances Meux, a sister of the deceased, together with her husband, moved an appeal from the order to the Superior Court; which court, finding the reasons for this appeal to bo untrue, dismissed it. After the dismissal and before June, 1877, Esther Lancaster, a sister and heir at law of the deceased, died; her husband, Alfred Lancaster, the present appellant, and two minor children surviving. In the last-named month Alfred Lancaster for himself as tenant by the curtesy, and for his two children, took an appeal from the decree of the probate court of December 30tli, 1875, approving the will, to the Superior Court, giving the reasons for his appeal which were given in the first, and therein found to be untrue. The present appellant was not a party to the first appeal; neither himself nor his wife had nbtice that the will would be offered for probate on December 30th, 1875, and were neither of them present in the probate court when it was approved. But he had knowledge that an appeal had been taken from the approval, and was present in the Superior Court at the trial thereof and testified in behalf of the appellant therein. The devisees filed a plea in abatement, and the Superior Court dismissed this second appeal. The appellant filed a motion in error, assigning that the court erred in holding that the dismissal of the first appeal established the will as against him and his children; in holding that the rights which accrued to him after the dismissal of the first appeal did not entitle him to an appeal; and in holding that he was in privity with the first appellant, and is bound by the decision upon that appeal. The statute (Gen. Statutes, p. 54, sec. 11,) provides that “ any person aggrieved by any order, denial or decree of- a court of probate, in any matter, unless where it is otherwise [256] specially provided by law, may appeal to the Superior Court in the county where such court of probate is held; but he shall give bond with sufficient surety, to the state, to prosecute such appeal to effect.” And the 12th section provides that “ all such appeals by those of full age and present, or who have legal notice to be present, shall be taken only to the next Superior Court; and if they have no notice to be and are not present, then within eighteen months.” And the 13th section, that “ all appeals by persons who are minors at the time of making the order, denial or decree appealed from, shall be taken within eighteen months after they shall arrive at full age.” ■ The appellees urge that the dismissal of the first appeal by the Superior Court has all the characteristics of a decision in rein, and is binding and conclusive upon everybody; and cite decisions of courts in Vermont, New York, California, and several other states, in support of that position. In Woodruff v. Taylor, 20 Verm., 73, the court, speaking of the probate of a will, says:—“ The proceeding is in form and substance upon the will itself. No process is issued against any one; but all persons interested in determining the state or condition of the instrument are constructively notified by a newspaper publication to appear and contest the probate.” The Code of Procedure of California permits any person interested in a will which has been admitted to probate to petition at any time within one year for a revocation of probate; upon such petition a citation issues to executors, administrators, legatees within the state, and guardians of'minors, to appear and show cause why probate should not be revoked; and if no person within one year after probate contests the same or the validity thereof, the probate is conclusive; saving to infants, married women, and persons of unsound mind, one year after removal of disability. The statutes of New York carefully provide for notice of the offer of a will for probate; and thus all parties are in court before the initial decree is passed. So we apprehend that only in states where this appellant, although not joining upon the record in taking the first appeal, could have become, or would have been made, a party to it by statutory notice, actually or constructively given, would he be held [257] bound by the action of the appellate court, where that action, as in the present case, has been an adjudication against the appellant, leaving the original probate decree unaffected. Neither the appellant nor his wife, an heir at law of the testator, had any notice of the time when the will would be presented for probate; neither was present when the probative decree was passed; neither had knowledge that it had passed until a subsequent day, and only knew of the first appeal therefrom as a matter of private information. But their absence and ignorance did not invalidate either the decree or the appeal. Our statute does not concern itself with giving them information as to when the approving decree will be passed; it is however careful to give each person to be affected thereby opportunity to appeal therefrom, provided he acts within the prescribed time; and in behalf of infants the door of appeal is held open for more than twenty years. By statute the right is individual—distinctly the property of each person; and while there is provision by which those who are interested in upholding any particular decree can in certain cases compel those who desire to reverse it to hasten their action, there is none for a compulsory union of several in an appeal to be taken in the name of one. And in a case where several undertook to preserve to themselves an interest in an appeal allowed to be taken in the name of one only of their number by agreement, this court refused to recognize any right in the appeal in any other than the single appellant of record. In Lake’s Appeal from Probate, 32 Conn., 331, the marginal note is as follows: “An appeal from a probate decree was taken by one of several heirs equally interested, under an arrangement with the other heirs by which the appeal was to be taken in his name, and they were to share the expense of the litigation.- After the appeal was taken, and it was too late to take any other, the appellant settled with the principal appellee, the latter purchasing and taking a conveyance of his interest in the estate; but the settlement was made with no knowledge on the part of the appellee of the arrangement under which the appeal was taken. After the settlement the appellant moved in the Superior Court to withdraw his appeal, which [258] the other heirs opposed on the ground of the agreement under which it was taken. Held that the appellee, having acted in good faith in making the settlement, the court could not properly refuse to allow the withdrawal.” The court said:— “ The parties who opposed the withdrawal of this case in the court below claim the right to appear and prosecute the appeal, although the case has been settled by the parties to the record, the appeal discharged and abandoned by the appellant, and all connected with the case have appeared in court and requested that the cause be discontinued. * * Under such circumstances can the agreement avail these parties? It is not pretended that it conferred any legal interest in the appeal, for that could be acquired only by pursuing the course prescribed by the statute; but the claim is that the agreement constituted them parties in equity. * * The appellant was the only party to the record, and we think the appellees had the right to consider that he only felt aggrieved by the doings of the court of probate. * * We think therefore that these parties have failed in equity as well as in law to show a right to appear and prosecute this appeal.” This appellant, upon the principle here recognized, is not to be affected by the determination of the Superior Court upon an appeal which he did not take, and to which he was in no manner a party, and which left the original probate decree in full force. Neither in our statute nor in this judicial determination as to the relation borne by him to that appeal, is there any suggestion that it is conclusive upon him as a final adjudication of the Superior Court upon the subject matter, fixing unalterably and beyond appeal the original probate decree. From and after the presentation of the will for probate there was a cause pending in the probate court, namely, the settlement of the testator’s estate; a cause to be carried to final completion in that court by a succession of orders or decrees. The first appeal subjected the order approving the will to review by the Superior Court, and thus temporarily put it in jeopardy of disaffirmance; but the cause remained no less within the jurisdiction of the probate court. The Superior Court, finding the appeal to be without sufficient [259] reason, dismissed it; and without substituting any judgment of its own for the original order of the probate court, merely ratified and confirmed it; thereafter, as before, it existed as the creation and by the power of the probate court; the appeal, being futile, left no mark upon it other than the stamp of approval of the Superior Court. Therefore the order existed in 1877 precisely as it had done in 1876; and furnished to the present, the second appellant, the same foundation for an appeal which it furnished to the first; and it will continue subject to appeal, as to all persons not parties to a previous appeal, so long as it stands unreversed, until the statute of limitations in favor of absentees and infants has exhausted itself. Appeals from orders of the probate court differ from what may be called common law appeals, as from a justice of the peace to a county court, or from the latter to a superior court. In these last the appeal vacates the judgment; the inferior court is emptied of jurisdiction; the entire cause is lifted into the appellate court, and there full and final disposition is made, as if it had been originally commenced therein; there is no turning or looking backward. But the appeal from the probate court is only from a particular order or decree; that being disposed of the cause proceeds in the probate court. The Superior Court determines principles, the probate court embodies them in orders. We decide here only that, where the probate decree has not been reversed on appeal, it stands open to appeal under the statute in favor of every party in interest who was not made a party to the former appeal and who has not dost his right of appeal under the limitations of the statute. What would be the effect of a reversal of the probate decree by the Superior Court upon the estate and the rights of parties interested we are not called upon to decide, and leave that question to be considered when it shall arise. There is manifest error in the judgment dismissing the appeal. In this opinion Park, C. J., and Granger, J., concurred; Loomis, J., dissented; Carpenter, J., did not sit.