Delehanty v. Pitkin

I dissent from the declaration made in the foregoing opinion that courts of probate have no power to set aside their own decrees, save in the cases where that power is given to them in express terms, and from the conclusion upon that ground that the Court of Probate could not admit the February will to probate, even if it was established that the decree admitting the earlier will to probate was procured by the fraud of one of the executors in destroying the later one.

It cannot be, in the nature of things, an uncommon thing that a man should die leaving a will, the existence of which is unknown to the parties in interest and for a time is not discovered. Most lawyers who have been long in practice have known such cases to occur. If, under such circumstances, an administrator be appointed on due notice, and the estate adjudged intestate, this ought not, in my judgment, to prevent the court which made these decrees from revoking them, under its general statutory authority and jurisdiction, should a will subsequently be found. General Statutes, § 203, however, would not authorize this, for it applies only to the revocation of ex parte orders. No other statute would be specially applicable to such a case except that allowing appeals to the Superior Court from any probate order; and it might well be that the time for any party aggrieved to appeal from the grant of administration had elapsed. Still greater would be the hardship, if the reason why the will was not found was that it had been fraudulently suppressed or destroyed by those interested in denying its effect.

In the judgment rendered I concur, on the ground that the February will could not be admitted to probate without setting aside the probate of the December will, and that the latter, having been affirmed by the Superior Court, could not be so set aside.