In re Will of Bowen
Before: Bhodes
Synopsis
Appeal from Probate Court—Notice of.—An appeal from any order, decree or judgment of a Probate Court, or from some specific part thereof, may be taken and perfected by filing with the Clerk of said Court a notice stating such appeal, and by executing an undertaking, or giving surety on such appeal in the manner and to the extent as upon an appeal from a District Court. The notice need not be served.
Exception.—An exception is an objection taken at the trial to a decision upon a matter of law, made at any time from the calling of the cause for trial to the rendering of the verdict or decision. An exception simply to an order of the Probate Court appealed from, taken at the time it is made, is entitled to be considered on such appeal.
Idem—The decision of a Court, when not rendered immediately after the close of the testimony, is, by operation of law, deemed to be excepted to on a motion for new trial, or an appeal. No express exception to a final decision is necessary for the purposes of a motion for new trial, or review on appeal.
Idem—An exception must be taken upon a fact or facts not denied. The point of law to the decision of which an exception lies, does not arise until the facts are determined.
New Trial of Issues framed in Probate Court, and Determined in District Court—Appeals from.—A now trial may be granted by the District Court of issues determined therein, which have been framed in a Probate Court, and an appeal from an order granting or refusing the same lies to the Supreme Court. Probate Courts are bound by the final determination of such issues in the District Court.
District Courts Without Jurisdiction to try Issues framed in Probate Courts.—Since the adoption of the constitutional amendments of 1862, District Courts have no jurisdiction to try issues framed in Probate Courts. Section six of Article VI, as amended, deprived District Courts of said jurisdiction, as conferred by said section before amendment, and defined in section twenty of the Probate Act. Section eight of the same Article, as amended, vested this jurisdiction exclusively in Probate Courts.
Idem—Since said constitutional amendments the provisions of section twenty of the Probate Act—conferring probate jurisdiction on District Courts—have become repugnant to the Constitution, and void.
By the Court, Bhodes, J.: The Probate Act does not require a service of the notice of appeal. It is provided by section two hundred and ninety-eight that the appeal “ shall be made by filing with the Clerk of the Probate Court a notice stating the appeal from the order, decree or judgment, or some specific part thereof, and by executing an undertaking or giving surety on such appeal, in the same manner and to the same extent as upon an appeal to the Supremé Court from the District Court,” etc. Service of the notice is not required by section three hundred, for it was not intended that the provisions of the Practice Act should supersede those of the Probate Act, or that the former should apply in any matter in respect to which express provision was made in the latter. One uniform mode of taking appeals to this Court is desirable, for it would greatly conduce to certainty as well as facility in practice.
The appeal is taken from the order of the Probate Court admitting the will to probate. The petitioner insists that the case cannot be reviewed on the bill of exceptions. The only exception found in the bill of exceptions is that taken to the order from which the appeal is taken. This mode of procedure, though unusual, is authorized by the Practice Act. An exception is an objection taken at the trial to a [686]decision upon a matter of law, made at any time from the calling of the action for trial to the rendering of the verdict or decision. (Practice Act, Sec. 188.) It is provided by section one hundred and ninety-one that “ when a cause has been tried by the Court, or by. referees, and the decision or report is not made immediately after the closing of the testimony, the decision or report shall be deemed excepted to on a motion for a new trial or an appeal, without any special notice that an exception is taken thereto.” By necessary inference an exception may be expressly taken to the decision when made immediately after the closing of the testimony. Such exception, whether expressly taken or interposed by law, will, in a large majority of cases, be of no service to the objecting party’ for it is not necessary to be taken in order to entitle him to move for a new trial on any of the grounds specified in the Act, or to maintain his appeal, if the facts found do not warrant the decision. Whether it was intended that an exception should be taken to the final decision by the party desiring to have the decision corrected by a new trial or an appeal, need not now be passed upon, for whatever the intention may at first have been, the opposite practice has been too long continued, as well as too uniform, to be now disturbed by the Court.
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