Opinion
No. 3568.
Decided February 5, 1946.
Where a husband predeceases his wife leaving a will in her favor and upon her death an administratrix was appointed in her estate, her heirs-at-law have no right to appeal from a decree of distribution in the husband's estate ordering payment to her administratrix by virtue of R. L., c. 365, s. 1. In such case, the proper procedure to contest the fitness of the administratrix is by petition to the Probate Court for revocation of her appointment as administratrix (R. L., c. 352, s. 10).
PROBATE APPEAL from a decree of distribution of the Probate Court for the County of Hillsborough, ordering the above-named Frank B. Clancy, administrator, to pay over the balance remaining in his hands as administrator of the estate of James E. Huntee, to Harriett G. Howard, administratrix of the estate of Agnes G. Huntee, deceased. Trial by the Court (Goodnow, J.) who ordered that the appeal be dismissed subject to the exceptions of the appellants.
James E. Huntee died prior to July 21, 1942, leaving a will by which he bequeathed all his property to his wife, Agnes G. Huntee. On July 21, 1942, the appellee, Frank B. Clancy, was appointed administrator with will annexed, of the estate of James E. Huntee. Subsequent to that date, Agnes G. Huntee also died, and the above-named Harriett G. Howard was appointed administratrix of her estate.
The appellants claim to be the heirs-at-law of the said Agnes G. Huntee, being the daughters of Mary O. Kingston, a deceased sister of Agnes G. Huntee.
The reason assigned by the appellants for their appeal is as follows: "One Harriett G. Howard misrepresented to the court that she was the daughter of Agnes Huntee, who was the lawful wife of the testator, James E. Huntee, when in truth and in fact she was not the daughter of said Agnes E. Huntee and she committed fraud and imposed herself upon the Probate Court. She was not a legal heir at law of said James E. Huntee."
Arthur J. Reinhart (by brief), for the appellants.
Ivory C. Eaton (by brief and orally), for the appellee.
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. That 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.