Eulalia M. Williams, Appellant, v. Myrtle B. Williams, Appellee, 328 F.2d 531 (D.C. Cir. 1964)

Appellant, Eulalia M. Williams, claiming to be the widow of one Leon Williams, filed a petition in the Probate Branch of the United States District Court for the District of Columbia, seeking to have appellee, Myrtle B. Williams (who also claimed to be decedent's widow), removed as administratrix. In her petition, appellant claimed that appellee was not the legal wife of decedent, as she had claimed in her petition for administration of decedent's estate. After hearing, appellant's petition was dismissed, appeal was taken, and we affirmed by judgment entered November 15, 1962. In the judgment affirming the case, we provided:

" [O]ur present judgment is without prejudice to the right of either party to this appeal, if so advised, to appeal from any order hereafter entered directing distribution of the estate of the decedent on final accounting. The issues may be tried de novo insofar as pertinent to the right of distribution."

After our decision, the probate case proceeded to the point when appellee, Myrtle B. Williams, as administratrix, filed her Second and Final Account, showing distribution of one-third of the residue to Myrtle and two-thirds to a child of decedent. Appellant filed exceptions and objections to the Second and Final Account, claiming, among other things, error in the proposed distribution, in that appellant, and not appellee, was the lawful widow of decedent. These exceptions came before Judge Youngdahl in the District Court, who, on the record made in the prior proceeding, overruled the exceptions on April 23, 1963. Thereafter, on May 17, 1963, the Second and Final Account was approved and passed by Judge Youngdahl. On June 14, 1963, appeal from the order approving and passing the account was filed. No appeal was taken from the order overruling the exceptions to the account.

Appellant claims that the District Court was in error in concluding from the evidence, as it did, that appellant was not the legal wife of decedent. We find no error, and, accordingly, the judgment of the District Court will be affirmed.

In view of this disposition of the appeal herein, it is not necessary that we pass upon appellee's argument that the appeal was not taken in time — in other words, that the time for appeal ran from the date of the overruling of the exceptions and not from the approval and passing of the final account.

Affirmed.

FAHY, Circuit Judge.

Being of the opinion that the appeal was timely and therefore should not be dismissed on jurisdictional grounds, see Slater v. Peyser, 91 U.S.App.D.C. 314, 200 F.2d 360 (1952), I join in affirmance for the reasons stated in the opinion of the court.