This is a probate appeal. The probate court decided that it was without power, by reason of the death of the widow, Agnes A. Fessenden, to grant to her personal representative such property of her deceased husband as it is authorized to do by G.L. 1923, chap. 364, sec. 6. In other words, the probate judge held that where a widow did not in her lifetime exercise her right to apply to the probate court for such property of her deceased husband, her personal representative was without any legal standing to do so after her decease.
The personal representative claimed an appeal from this ruling of the probate court. He filed his reasons of appeal in the superior court, setting out this action of the probate court as one of his reasons of appeal. His claim of appeal in the probate court and the filing of his reasons of appeal in the superior court clearly raised in this case in the superior court "prior to trial thereof on its merits" a "question of law" within the meaning of those terms as used in G.L. 1923. chap. 348, sec. 5. As far as I have been able to find, there is no practice which has been adopted or procedure which has been prescribed for raising pure questions of law, not dependent upon evidence, in the superior court on probate appeals before trial thereof. It is not the practice to demur *Page 16 or plead or to move to dismiss the reasons of appeal for the purpose of raising some question of law before the call for trial. The reasons of appeal themselves raise such questions of law just as do the reasons of appeal in an equity appeal before us.
Must an appellant in a probate appeal wait until his appeal is called for trial, a jury impanelled, and the appeal formally opened to the court and jury, before he can ask the court to exercise its authority to certify to this court a pure question of law which he claims to be of doubt and importance? Why may he not invoke that authority before trial by filing a motion which thereby brings to the attention of the court the question of law pending before it and which question must, of necessity, in any event be determined when the case is called for trial?
In the ordinary case at law or in equity a party may raise such a question before trial by demurrer or plea. In other words, during the period of pleading, while the parties are engaged in formulating the ultimate issue or issues to be tried, it is an appropriate time, according to the statute, to ask the court to certify a question which the court deems to be of doubt and importance. The corresponding period is reached in a probate appeal when the reasons of appeal are filed in the superior court. The issues to be tried are there raised and are then ready for trial; and they are the only issues. Gilbert v. Hayward,37 R.I. 303. Again the question recurs, why then must a probate appellant's opportunity to invoke the benefit of chap. 348, sec. 5 be postponed to the day of trial?
I am at one with the court in its purpose to prevent the abuse of the privilege granted by sec. 5, but I question the efficacy as well as the soundness of the practice which necessitates sending this case back to the superior court merely because it was certified here by that court on motion before the case was actually called for trial before that court. I *Page 17 anticipate that such practice will generate in the future a greater evil than any it is designed to cure. The waste of time of the superior court's trial calendar and, on occasions, the needless impanelling of juries are in themselves sufficient reasons, if others were lacking, to cause us not to do what the court is here doing.
The instant case especially does not justify it. At the very threshold of the case this question of law arises: "Is the appellant a proper petitioner under chap. 364, sec. 6?" This question is necessarily in the case and cannot be avoided. It must be decided sometime. The superior court deems it of doubt and importance. It may be that it is neither; and, in order for us to be called upon to answer the question certified, it must be both. State v. Karagavoorian, supra. Whether it is or not, however, is not the precise question presently under consideration. That question is whether the question of law as certified has arisen in this probate appeal within the meaning of chap. 348, sec. 5. I think it has, and for this reason I cannot agree with the opinion of the majority of the court. My disagreement, however, with what is there held, is confined only to this case, which is a probate appeal, and I do not wish to be understood as disagreeing with the application of what the court has there said to other cases which originate in the superior court or which come to that court by appeal from the district court, in all of which cases there is a time for pleading before trial in which questions of law may be raised.