Moretti v. Moretti

WALSH, J.

Heard on motion to dismiss appeal from the order and decree of the Probate Court of the City of Cranston.

The petitioner, claiming to be the widow' of decedent, filed in the Probate Court a petition to set aside the final account of the administrator and to re-open the estate on the grounds of manifest errors and fraud on the part of respondents. After hearing thereon, the Probate Court declined to set aside the final account and to reopen the matter. The petitioner thereupon claimed an appeal to this Court.

Vittorio Moretti et als., now move to dismiss the aforesaid appeal because

(1) It appears from said appeal and reasons of appeal that this Court has no jurisdiction to entertain said appeal.

(2) It appears that if the Probate Court had jurisdiction of the subject matter of this petition upon which the decree appealed from was entered, that said jurisdiction was concurrent witn that of the Supreme Court of the State of Rhode Island and that the action of said Probate Court on said petition was final.

(3) From all that appears in the record and in the reasons of appeal, the subject matter of the petition to the Probate Court and its decree thereon furnish no ground to give this Court jurisdiction of said appeal.

The fraud alleged in the petition is the failure of the administrator and distributees to make known to the Court the interest of petitioner in the estate as the widow of decedent, they having full knowledge of the facts. Three of the five distributees are minors.

Unless contrary provision is made, the decree of a Probate Court in a matter within its judicial discretion may be reviewed in the Superior Court on appeal. Upon consideration of such appeal, that Court would be governed by the rule applied by the -Supreme Court that such a decision should not be disturbed unless it is clearly shown that the discretion has been improperly exercised.

MacKenzie vs. Shea, 45 R. I. 407.

Motion to dismiss denied.