Clancy v. Pike

Supreme Court of New Hampshire

Clancy v. Pike

45 A.2d 658, 94 N.H. 33, 1946 N.H. LEXIS 136

CourtSupreme Court of New Hampshire

DecidedFebruary 5, 1946

DocketNo. 3568.

StatusPublished

This text of 45 A.2d 658 (Clancy v. Pike) is published on Counsel Stack Legal Research, covering Supreme Court of New Hampshire primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Clancy v. Pike, 45 A.2d 658, 94 N.H. 33, 1946 N.H. LEXIS 136 (N.H. 1946).

Pincite

Opinion

Per Curiam.

The appeal was properly dismissed for two fundamental reasons, either one of which is sufficient to sustain the Court’s order.

1. Since the will of James E. Huntee bequeathed all his property to his wife, the decree ordering payment to her legal representative was the only one which the Judge of Probate could lawfully make. “The personal estate bequeathed by a testator shall be distributed by decree of the judge according to the will.” R. L., c. 360, s. 7.

2. The appellants have no interest in the estate of James E. Huntee which entitles them to claim an appeal. “Any person aggrieved by a decree, order, appointment, grant or denial of a judge, which may conclude his interest and which is not strictly interlocutory, may appeal therefrom to the superior court at the term next to be holden for the county.” R. L., c. 365, s. 1..

The appellants claim as the heirs of Agnes E. Huntee. Their rights, like those of all her other heirs, must be secured through her personal representative duly appointed by the Probate Court. Thai; representative is Harriett G. Howard who, in her representative capacity, is the only person charged with the duty of asserting the “interest” of Agnes E. Huntee in her husband’s estate, and the only person authorized to appeal from orders affecting that interest. In this respect the present case differs from Pockett v. Farley, 86 N. H. 79, where no administrator of the deceased had been appointed. The decree in question, which merely ordered payment to Harriett G. Howard as administratrix, did not “conclude” the interests, of the appellants, since their rights against the estate of Agnes were unaffected thereby. On the contrary, it was a usual and necessary step in the process of transferring the property of James to the estate of his wife for the benefit of her heirs. Under the above section of the statute they were not entitled to appeal therefrom.

If the'appellants wished to contest the fitness of the administratrix to execute her trust, their remedy was not to raise the question in a proceeding in the estate of James, but to petition the Probate Court to revoke the administration in the estate of Agnes under R. L., c. 352, s. 10.

Exceptions overruled..

Free access — add to your briefcase to read the full text and ask questions with AI

Per Curiam.

The appeal was properly dismissed for two fundamental reasons, either one of which is sufficient to sustain the Court’s order.

1. Since the will of James E. Huntee bequeathed all his property to his wife, the decree ordering payment to her legal representative was the only one which the Judge of Probate could lawfully make. “The personal estate bequeathed by a testator shall be distributed by decree of the judge according to the will.” R. L., c. 360, s. 7.

2. The appellants have no interest in the estate of James E. Huntee which entitles them to claim an appeal. “Any person aggrieved by a decree, order, appointment, grant or denial of a judge, which may conclude his interest and which is not strictly interlocutory, may appeal therefrom to the superior court at the term next to be holden for the county.” R. L., c. 365, s. 1..

The appellants claim as the heirs of Agnes E. Huntee. Their rights, like those of all her other heirs, must be secured through her personal representative duly appointed by the Probate Court. Thai; representative is Harriett G. Howard who, in her representative capacity, is the only person charged with the duty of asserting the “interest” of Agnes E. Huntee in her husband’s estate, and the only person authorized to appeal from orders affecting that interest. In this respect the present case differs from Pockett v. Farley, 86 N. H. 79, where no administrator of the deceased had been appointed. The decree in question, which merely ordered payment to Harriett G. Howard as administratrix, did not “conclude” the interests, of the appellants, since their rights against the estate of Agnes were unaffected thereby. On the contrary, it was a usual and necessary step in the process of transferring the property of James to the estate of his wife for the benefit of her heirs. Under the above section of the statute they were not entitled to appeal therefrom.

If the'appellants wished to contest the fitness of the administratrix to execute her trust, their remedy was not to raise the question in a proceeding in the estate of James, but to petition the Probate Court to revoke the administration in the estate of Agnes under R. L., c. 352, s. 10.

Exceptions overruled..

Cite This Page — Counsel Stack

Bluebook (online)

45 A.2d 658, 94 N.H. 33, 1946 N.H. LEXIS 136, Counsel Stack Legal Research, https://law.counselstack.com/opinion/clancy-v-pike-nh-1946.

Opinion

Related

Cite This Page — Counsel Stack