Opinion
The plaintiff, a beneficiary under the residuary clause of a will, appealed from the refusal of the Probate Court to revoke an ex parte order for a widow's allowance. Even if the widow's allowance were set aside, the widow, by virtue of the clear language of the will, was entitled to receive the same amount from the estate. The plaintiff's interest in the estate, therefore, was not adversely affected by the action of the Probate Court, and the Superior Court properly concluded that it was without jurisdiction to entertain the plaintiff's appeal. The dismissal of the appeal did not deny the plaintiff his day in court and thereby deprive him of property without due process of law. He was fully heard in the Superior Court on the question whether he was deprived of property by the order appealed from.
Argued January 5, 1954
Decided February 9, 1954
Appeal from a decree of the Probate Court for the district of Fairfield denying the plaintiff's petition for the revocation of an order awarding an allowance for the support of the widow, brought to the Superior Court in Fairfield County and tried to the court, Cullinan, J.; judgment dismissing the appeal, from which the plaintiff appealed to this court. No error.
The appellant filed a motion for reargument which was denied.
Clifton F. Weidlich, for the appellant (plaintiff).
Frederick L. Comley, for the appellees (defendant executors).
John F. McGowan, for the appellee (defendant Hetty S. Weidlich).
Louis Weidlich died testate leaving a widow, Hetty S. Weidlich. His will was admitted to probate in the Probate Court for the district of Fairfield on July 25, 1950. On August 15 of that year the Probate Court entered, ex parte, an order for a widow's allowance of $1250 a month pending the settlement of the estate, and under that order the widow was paid a total amount of $15,000 within the period of one year. No appeal was taken from that order. The plaintiff, by the terms of the will, takes a share of the remainder of the estate after the termination of the widow's life interest therein. On November 28, 1952, he made an application to the Probate Court for the revocation of the order for a widow's allowance. The Probate Court, on January 2, 1953, entered its order denying the application, and from that order the plaintiff appealed. The Superior Court rendered judgment dismissing the appeal, and from that judgment this appeal has been taken.
Contained in Louis Weidlich's will is this paragraph: "Third: I direct my Executors on behalf of my wife, Hetty S. Weidlich, to apply to the Probate Court for an allowance for her support and maintenance while my estate is in the process of settlement, and if, for any reason, the Court shall not make such allowance, I direct my Executors to pay to my wife for her support and maintenance, the sum of One Thousand Two Hundred and Fifty Dollars (1250.00) per month while my estate is in the process of settlement, however long that period may be, and to charge said sums against the principal of my estate." Because of this provision in the will the trial court concluded that the plaintiff was not aggrieved by the order of the Probate Court and that, therefore, it was without jurisdiction to entertain his appeal. The determinative question on this appeal is whether that conclusion was erroneous.
The decision of the question is controlled by the opinion of this court in Weidlich v. First National Bank Trust Co., 139 Conn. 652, 96 A.2d 547. In that case the present plaintiff undertook to appeal from an order of the Probate Court, in this same estate, making a widow's allowance for the period of time next after that covered by the order which the plaintiff now seeks to have revoked. In the opinion, after reiterating (p. 656) our law to the effect that under 7071 of the General Statutes the Superior Court is without jurisdiction to entertain an appeal from a probate decree unless the appellant is "aggrieved" by that decree; we pointed out (p. 657) that, even though the widow's allowance were set aside, the widow, by virtue of the clear language of the third paragraph of the will, would be entitled to receive the same amount from the estate. Consequently, the plaintiff's remainder interest was not adversely affected by the allowance. The same reasoning applies in the present case. The plaintiff was not aggrieved by the probate order from which he sought to appeal. The conclusion reached by the trial court was correct.
The plaintiff contends that the order appealed from deprived him of his property without due process of law because he has been deprived of his day in court with reference to the original granting of the widow's allowance. That contention overlooks the fact that the only question with which we are concerned in the case is whether or not he was aggrieved, and that turns upon the question whether he was deprived of his property by the order. On that question he was fully heard in the Superior Court. He has had full protection of the rights guaranteed to him by both the state and the federal constitutions.