Gray v. Gardner , 81 Me. 554 ( 1888 )

Danforth, J.

In July 1887, Augusta V. Norton petitioned the probate court for leave to adopt a child under the provisions of the R. S., c. 67. The prayer of her petition was granted and a decree to that effect entered of record on the last Tuesday of August of the same year. The petitioner died on the subsequent 8th day of September and on the next day, the parties now before the court, representing themselves as the mother, brothers and sisters of the deceased petitioner, entered an appeal with their reasons therefor. At the hearing at nisi prius the presiding justice dismissed the appeal on the ground, “that the reasons for appeal do not .show any right of appeal and are insufficient in law.” To this ruling exceptions were allowed. This presents the simple question whether, in a case like this the heirs of the petitioner, presumptive or actual, have a right of appeal.

The statute provides that “any petitioner, or any such child, by his next friend, may appeal from such decree, to the supreme court of probate * * as in other cases.” R. S., c. 67, § 36. Here is a precise designation of the parties allowed the right of appeal. Neither of these parties saw fit to appeal at the time the decree was passed. At that time, the petitioner living, it is clear the heirs presumptive had no right of appeal. They were not the petitioners nor could they in any legal sense be the representatives of the petitioner. The adoption of the child would impose no duties or obligations upon them. Nor had they any vested rights as heirs which the adoption would interfere with, nothing in this respect, the prospect of which, it was not entirely competent for the petitioner to deprive them, either by the adoption of an heir or in the various other methods known to the law. Nor are their rights increased by her death. If they are deprived of their inheritance, it is by an act of the ancestor legal and competent for her to perform, and by which they must abide.

It is equally clear that they cannot appeal as representatives of the petitioner. Not as heirs, for as such they are acting and must act if at all, in their own behalf and for their own interests. Not as administrators, if such they were, for the decree is the result of a completed act of the intestate.

The exceptions of the appellee are not urged. They must also be overruled. The appeal being dismissed as a nullity, the court has no jurisdiction of the case and can neither affirm or reverse the decree of the court below.

jBoth exceptions overruled.

Appeal dismissed.

Peters, C. J., Libbey, Emery, Foster and Haskell, JJ., concurred.