In re John Oliveira

Supreme Court
No. 99-15-Appeal.
(PP92-3340)
:
:
:	In re John Oliveira.
Present: Weisberger, C.J., Lederberg, Bourcier, Flanders, and Goldberg, JJ.
O P I N I O N
Per Curiam. This case came before the Supreme Court on December 6, 2000, pursuant to an
order directing the parties to appear and show cause why the issues raised in this appeal should not be
summarily decided. John Oliveira (John) appeals from a Superior Court judgment denying and
dismissing his appeal with prejudice from a decision rendered by the Probate Court of the Town of
Warren. After hearing counsels’ arguments and considering the memoranda submitted by the parties,
this Court is of the opinion that cause has not been shown. Therefore, this appeal will be decided
summarily.
Peter Oliveira (Peter), John’s father, died on January 6, 1992. Peter’s last will and testament
later was duly presented for probate in the Probate Court for the Town of Warren. Peter’s two
children, a son, John, and a daughter, Beatrice Hedrick, challenged the validity of the will and its
admission to probate.1
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1 Because Peter and John share the same last name we will refer to them by their first names for
purposes of convenience, and in so doing no disrespect is intended. Peter’s daughter, Beatrice, who

Following a hearing in the Probate Court, the probate judge rejected the challenge to Peter’s
will and admitted it to probate, detailing his reasons for doing so in an eight-page opinion entitled
“Decision.” That decision was signed by the probate judge, filed with the town clerk and recorded by
her on April 9, 1992. It provided in part:
“Based on the evidence presented the decision which the court must
make is clear. That decision is that the will dated April 11, 1985 is the
will of the testator and that the testator possessed capacity to make the
will and that he was not subjected to undue influence or fraud in its
making. The will is therefore admitted to Probate as of the entry date of
this opinion.”
Thereafter, on April 29, 1992, John filed his notice of appeal in the Warren Probate Court and,
on May 29, 1992, filed in the Providence County Superior Court a one-page document entitled,
“Appeal for De Novo Jury Trial.” Counsel representing the residual devisee under Peter’s will then
moved to dismiss John’s appeal, citing John’s failure to perfect his appeal by filing within thirty days
after the entry of the probate order or decree, a certified copy of his claim, the record of the probate
proceedings and his reasons of appeal as required by G.L. 1956 § 33-23-1. Section 33-23-1
provides:2
“Any person aggrieved by an order or decree of a court of
probate may, unless provisions be made to the contrary, appeal to the
superior court for the county in which the probate court is established,
by taking the following procedure:
(1) Within twenty (20) days after entry of the order or decree,
he or she shall file in the office of the clerk of the probate court a claim
of appeal to the superior court and a request for a certified copy of the
claim and the record of the proceedings appealed from, and shall pay
the clerk his or her fees therefor.
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2 General Laws 1956 § 33-23-1 was amended by P.L. 1996, ch. 110, § 13, which went into effect
July 31, 1996. The portions of the statute cited are those that were in effect in April 1992, prior to the
amendment.
challenged their father’s will in the probate court, has filed no appeal.

(2) Within thirty (30) days after the entry of the order or
decree, the appellant shall file in the superior court a certified copy of
the claim and record and the reasons of appeal specifically stated, to
which reasons the appellant shall be restricted, unless, for cause shown,
and with or without terms, the superior court shall allow amendments
and additions thereto.” (Emphases added.)
John objected to the motion to dismiss on the ground that the probate judge’s written eight-page
opinion was a “decision,” not a required “order” or “decree” as alleged under case law and statute.3 A
Superior Court motion justice on September 15, 1998, rejected John’s contention and granted the
motion to dismiss with prejudice. A final judgment dismissing his appeal was entered. John appeals
therefrom to this Court.
The sole question posed to this Court is whether John’s appeal of the Probate Court “Decision”
admitting his father’s will to probate was timely filed with the Superior Court. For the following reasons,
we conclude that John’s appeal was not within the required appeal time and, thus, was not timely.
In this case, John’s one-page document, entitled simply as “Appeal for De Novo Jury Trial,”
filed in the Superior Court on May 29, 1992, well after the thirty-day limit imposed by § 33-23-1(2),
failed to comply with the specific filing mandate contained in that statute.
Nevertheless, John contends here that because the probate judge only issued a “decision,” and
not an “order” or “decree,” as required by § 33-23-1(2), his appeal is not untimely. We disagree.
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3Both sides cite to G.L. 1956 § 33-22-31(a), “Form of order and decree,” which states in part,
“Every decision of a probate court shall be reduced to a written order
or decree, promptly executed by the probate judge, entered and filed in
a timely fashion by the probate clerk. No party can rely upon any
action, inaction or instructions of the probate court nor take an appeal
from any decision of the probate court that has not been reduced to a
written order or decree duly executed by the probate judge.”
Since the provision was not in effect in April 1992, and since our case law on the question presented to
us is dispositive, we do not address this statute in our discussion.

In Raymond v. Raymond, 109 R.I. 265, 270, 284 A.2d 64, 67-68 (1971), we stated that a
“decree” is a “judicial fiat or pronouncement that determines a matter in controversy.” We also referred
to a “decree” as a “decision made in our equity courts, probate courts or other tribunals * * *.” Id. at
271, 284 A.2d at 68. (Emphasis added.) In doing so, we rejected semantical exactitude or excessive
formalism in determining what constitutes a proper judicial decree or order:
“While legal preciseness requires that the word ‘judgment,’ be applied
to a decision made by a court of law and the word ‘decree’ be referred
to as a decision made in our equity courts, probate courts or other
tribunals that follow the course of equity, the term ‘judgment,’ when
used in its broad sense, includes a decree and a judgment. A rendition
of judgment is a judicial act which settles the respective rights and
claims of the litigants.” Raymond, 109 R.I. at 270-71, 284 A.2d at 68.
We also have concluded that a decree becomes effective when it is signed by the judge and entered by
the clerk. Raymond, 109 R.I. at 272, 284 A.2d at 68. In Coen v. Corr, 90 R.I. 185, 156 A.2d 406
(1959), we reiterated that a final decree “must terminate the litigation of the parties on the merits of the
case, so that if there should be an affirmance here, the court below would have nothing to do but to
execute the decree it had already rendered.” Id. at 189, 156 A.2d at 408 (quoting McAuslan v.
McAuslan, 34 R.I. 462, 469, 83 A. 837, 840 (1912)).
The decision filed by the probate judge on April 9, 1992, in this case we believe comes within
the purview of a “decree.” It was a judicial act of the probate judge that settled the respective rights
and claims of the two contestants challenging the probating of Peter’s will and it terminated litigation of
the will contest in the Warren Probate Court. The decision was signed by the probate judge and duly
filed by the town clerk. We are mindful of the guidance provided by Raymond in warning us not to be
bound by formal labeling in discerning the true meaning of a judicial pronouncement. Here, the judge
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entitled his eight-page written opinion “Decision,” concluding that Peter’s will had been properly
executed by him and that when he executed the will, Peter was of sound and disposing mind and
memory. Accordingly, he ordered that the will be “admitted to Probate as of the entry date of this
opinion.”
Thus, John’s appeal is denied. The Superior Court’s dismissal of John’s untimely probate
appeal was proper and the final judgment is affirmed. The papers in this case will be returned to the
Superior Court.
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COVER SHEET
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TITLE OF CASE: In re John Oliveira
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DOCKET NO.: 99-15 - A.
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COURT: Supreme Court
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DATE OPINION FILED: January 29, 2001
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Appeal from County:
SOURCE OF APPEAL: Superior Providence
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JUDGE FROM OTHER
COURT: Vogel, J.
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JUSTICES: Weisberger, C.J., Lederberg, Bourcier,
Flanders, Goldberg, JJ. Concurring
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WRITTEN BY: PER CURIAM
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ATTORNEYS: Dennis J. Tente, Roger R. Demers
For Plaintiff
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ATTORNEYS: Anthony DeSisto
For Defendant
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