Reed v. Foster

54 Me. 499

• Court: Supreme Judicial Court of Maine
• Decided: July 1, 1867
• Status: Published

Opinion

Barrows, J.

The petitioners, if their interests are likely to suffer by reason of any misdoings of the commissioners, or of the administratrix, have evidently mistaken their remedy. To the proceedings before the Judge of Probate, under c. 115 of the laws of 1859, the only legal parties were the claimant, or claimants, and the administratrix, representing the estate and the rights of these petitioners (with others) therein.

No other persons are entitled to an appeal in such case, because the rights of no others are directly affected by the proceedings. Thus, the several heirs of a residuary legatee are not entitled to appeal from a decree allowing the account of an executor, but the appeal should be made by the administrator of the residuary legatee, he being the person directly entitled to receive that .which is finally to be distributed among the heirs of the residuary legatee. Downing v. Porter, 9 Mass., 386.

If the administratrix has collusively or negligently failed to claim an appeal, in a case where her duty to the estate which she represents required it, the remedy of those interested in the estate would be by suit upon her bond. Such failure could not authorize an appeal by persons other than the parties to the proceeding. So that this petition must, in any case, have been dismissed, even had the claimant (who was the party in interest opposed to the heirs) been notified of its pendency. And, manifestly, notice to the administratrix, whose legal interest was identical with that of the heirs, was insufficient to authorize any further proceedings upon the petition. Exceptions overruled.

Petition dismissed with costs for the respondent.

Appleton, C. J., Kent, Walton, DickeesoN, Daneoetii and Tafley, JJ., concurred.