Clarke v. Clarke and Others

Supreme Court of Rhode Island

Clarke v. Clarke and Others

7 R.I. 45

DecidedAugust 6, 1861

StatusPublished

This text of 7 R.I. 45 (Clarke v. Clarke and Others) is published on Counsel Stack Legal Research, covering Supreme Court of Rhode Island primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Clarke v. Clarke and Others, 7 R.I. 45 (R.I. 1861).

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Opinion

Ames, C. J.

We have before had occasion to consider, that in the partition of poAvers amongst the courts of this State, this court, sitting in chancery, has no original jurisdiction over the probate of wills, whether of real or personal property ; such jurisdiction being vested, by law, exclusively in the courts of probate, with an appeal to this court, as the supreme court of probate. Olney and others v. Angell, adm’r, 5 R. I. Rep. 198, 202. The complainant’s title to relief depends upon the will of the late Simeon Clarke, the probate of which, produced, is simply void for want of notice to the parties interested; and which, without due probate, or admission of its validity in the answer, can no more furnish evidence of title to realty in equity, than at law. Supra. The proper course of the complainant was, to prove the will of her testator before the Court of Probate of the town of Charlestown, upon due notice to all persons interested, — the *48 power of that court extending to the proof of lost wills, as well as of wills before them at the time of proof. She began in this way; but her decree of probate failing for want of notice, she improperly comes here for aid, instead of retracing her steps and correcting her errors in the place where she made them. This bill, which shows no ground for equitable relief or assistance, must be dismissed with costs.

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Ames, C. J.

We have before had occasion to consider, that in the partition of poAvers amongst the courts of this State, this court, sitting in chancery, has no original jurisdiction over the probate of wills, whether of real or personal property ; such jurisdiction being vested, by law, exclusively in the courts of probate, with an appeal to this court, as the supreme court of probate. Olney and others v. Angell, adm’r, 5 R. I. Rep. 198, 202. The complainant’s title to relief depends upon the will of the late Simeon Clarke, the probate of which, produced, is simply void for want of notice to the parties interested; and which, without due probate, or admission of its validity in the answer, can no more furnish evidence of title to realty in equity, than at law. Supra. The proper course of the complainant was, to prove the will of her testator before the Court of Probate of the town of Charlestown, upon due notice to all persons interested, — the *48 power of that court extending to the proof of lost wills, as well as of wills before them at the time of proof. She began in this way; but her decree of probate failing for want of notice, she improperly comes here for aid, instead of retracing her steps and correcting her errors in the place where she made them. This bill, which shows no ground for equitable relief or assistance, must be dismissed with costs.

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Bluebook (online)

7 R.I. 45, Counsel Stack Legal Research, https://law.counselstack.com/opinion/clarke-v-clarke-and-others-ri-1861.