GEORGE N. CONSTANCE, Appellant, v. NATHANIEL CONSTANCE, Appellee.

MOTION TO DISMISS APPEAL FROM THE RULING OF THE MONTHLY AND PROBATE COURT FOR MONTSERRADO COUNTY.

Heard: December 3, 2001. Decided: December 20, 2001.

1. If a party fails to appear to oppose a motion, the motion shall be granted on proof of the service of the notice of assignment on that party.
2. In order to complete an appeal, an appealing party must have announced the taking of the appeal, filed a bill of exceptions, filed an approved appeal bond, and served and filed a notice of completion of the appeal. A failure to comply with these requirements within the time allowed by law shall be grounds for the dismissal of the appeal.
3. An appeal may be dismissed by the trial court on motion for failure of the appellant to file a bill of exceptions within the time allowed by statute, and by the appellate court after filing of the bill of exceptions for failure of the appellant to appear on the hearing, to file an appeal bond, or to serve a notice of completion of the appeal as required by statute.
4. Persons who are distributees of an intestate estate and who are eligible shall qualify for inheritance of the said estate in the following order: [t]he surviving spouse, the children, the grandchildren, the father or mother, the brother or sister, and any other persons who are distributees, preference being given to the person entitled to the largest share in the estate.

General John Nyema Constance, Sr. died intestate, leaving divers property and three children. Thereafter, John Nyema Constance, Jr., eldest of the three children, who had applied for and was granted letter of administration to administer his deceased father’s estate, also died, leaving to survive him a younger brother and sister. Following the death of John. Jr., his younger brother, Nathaniel Constance, II, applied for and was granted letters of administration to administer the afore-said estate. Shortly thereafter, George Constance, nephew of Nathaniel Constance, filed a petition with the probate court for the revocation of the letters of administration granted to Nathaniel, alleging that the mother of Nathaniel was never married to John Constance, Sr., that Nathaniel was begotten out of a relationship between Nathaniel’s mother and another man, that Nathaniel was therefore not the blood son of the late General John Nyema Constance, Sr., and that hence he was not entitled to administer the estate of the late John Constance, Sr. The court suspended the letters of administration granted to Nathaniel and ordered that the estate be handled by the curator for Montserrado County pending the outcome of the case. At the close of the trial, the court denied the petition for revocation, reinstated Nathaniel Constance as administrator of the decedent’s estate, and ordered the curator to turn over the activities of the estate to the administrator. From this decision, George Constance appealed to the Supreme Court.
The Supreme Court denied the appeal and affirmed the decision of the probate court, holding firstly, that the appellant had failed to file an approved appeal bond and to serve and file a notice of the completion of the appeal, the same being grounds under the statute for the dismissal of the appeal. Secondly, the Court rejected the contention of the appellant as to the paternity of Nathaniel Constance, II, noting that not only had Nathaniel been accepted by Mr. Constance, Sr. into his household while the latter was alive, but also that Nathaniel had been accepted as a blood brother by John Constance, Jr., whom the appellant had acknowledged as the legitimate son of Mr. Constance Sr. Moreover, the Court added, Nathaniel had ben allowed to carry the name of Mr. Constance and, under the circumstances, the appellant not being the legal guardian of the only child whom he claimed was entitled to inherit the estate, he was without the legal capacity to bring a suit challenging the right of Nathaniel Constance to letters of administration of the decedent’s estate. Hence, the Court dismissed the appeal and affirmed the reinstatement of the administrator of the decedent’s estate.

James W. Zotaa, Jr. of the Liberty Law Firm appeared for the appellant.

MR. JUSTICE WRIGHT delivered the opinion of the Court.

Once again, this Court has been presented with another family feud over the property of a deceased person wherein members of the family are exchanging allegations of bastardy and illegitimacy, on the one hand, and ambition, greed, and presumptuousness, on the other hand. The actors or partici-pants in this case are the following:

1. General John Nyema Constance, Sr., the intestate patriarch, whose death was presumed due to his having gotten missing from the Catherine Mills Rehabilitation Hospital in Paynesville since November 9, 1983.
2. Madam Annie Yancy Constance, widow of the late General John Nyema Constance, Sr., and natural mother of his three children.
3. John Nyema Constance, Jr., Nathaniel Constance, II, and Annie Constance, the three children born of the body of Madam Annie Yancy Constance unto her union with General John Nyema Constance, Sr.
4. George N. Constance, nephew of the late General John Nyema Constance, Sr.

The facts culled from the records in the case file indicate that during his lifetime, General John Nyema Constance, Sr., the decedent, acquired and was seized of divers properties, real, personal and mixed, within the Republic of Liberia, and more specifically, in Nimba and Montserrado Counties.
After the presumed death of the decedent in November 1983, his eldest son, John Nyema Constance, Jr., filed a petition in the Eighth Judicial Circuit Court for Nimba County for letters of administration. The petition was granted on Au-gust 16, 1989 by the said court sitting in its probate division, thereby authorizing John, Jr. to administer his late father’s estate. John, Jr., as the sole administrator, administered the estate for nine years, uninterrupted and unmolested until his own death on April 29, 1998 in Nimba County. He was survived by his mother, Annie Yancy Constance, his brother, Nathaniel Constance, II, his sister, Annie Constance, and his minor daughter who lives with her maternal grandmother.

Upon the death of John Nyema Constance, Jr., the admini-strator of the Intestate Estate of the late General John Nyema Constance, Sr., his younger brother, Nathaniel Constance, II, filed a petition on May 28, 1998 in the Monthly and Probate Court for Montserrado County, praying for letters of admini-stration to administer the intestate estate of his late father, John Nyema Constance, Sr., in place of his deceased elder brother, John Nyema Constance, Jr. The petition was granted and letters of administration were issued on May 29, 1998.
Barely a month thereafter, on June 25, 1998, George N. Constance, nephew of the decedent and patriarch, John Nyema Constance, Sr., filed a petition in the Monthly and Probate Court for Montserrado County praying for the revocation of that court’s letters of administration of May 29, 1998, issued to Nathaniel Constance, II. The basis for the petition for revocation was that the administrator, Nathaniel Constance, II, was not the biological son of the late Gen. John Nyema Constance, Sr., but rather the son of one Mr. Joma Massaquoi of Ganta City, Nimba County. The petition alleged that General Constance was married to only Mrs. Nora Constance of Cape Palmas, whom he divorced in 1932 in Cape Palmas, and that he did not remarry. The petition further alleged that Madam Annie Yancy was only a paramour (girlfriend) to General Constance. In the petition, the petitioner conceded that Madam Annie Yancy at some point did live with General Constance and bore unto him one child, John Nyema Constance, Jr., but he contended that after General Constance had put Madam Annie Yancy out of the home because of an alleged unfaithfulness, she went to live with her parents in Ganta, where she met and then began to live with Mr. Joma Massaquoi, for whom she had her two other children, Nathaniel Constance, alias Nathaniel Massaquoi, and Annie Constance, alias Annie Massaquoi. The petitioner, appellant herein, therefore concluded that the two latter children of Annie Yancy bore no blood relation to the decedent, General John Nyema Constance, Sr.
Based upon the aforesaid petition for revocation filed by George Constance, nephew of the deceased, the probate court suspended the letters of administration issued to Nathaniel Constance, II, son of the deceased, and placed the estate under the control of the curator of the court.

Thereafter, on June 28, 1999, the suspended administrator, Nathaniel Constance II, son of the deceased, filed a motion for relief from judgment, praying the probate court to rescind its decision suspending his letters of administration because he was not summoned and given the opportunity to appear and to defend himself against the allegations stated in the petition for revocation. In the motion, the appellee asserted that he did not know about the petition for revocation until June 18, 1999, when he was before the Civil Law Court in a matter of summary proceedings against a magistrate who had sought to evict him from the premises on which he resided.
The probate court heard the motion on July 22, 1999 and ruled on July 29, 1999 allowing the movant, Nathaniel Constance, II, ten (10) days within which to file returns to the petition for revocation. But the court also held that the estate should remain under the control of the curator for Montserra-do County pending a final disposition of the matter.
On September 15, 1999, the court heard arguments on the law issues raised in the petition and returns, and on October 6, 1999 ruled both the petition and the returns to trial in order to determine whether Nathaniel Constance, II misled the court and obtained his letters of administration through fraud and misrepresentation. The trial commenced on October 13, 1999 and was in progress for more than one year, that is, it conti-nued to November 20, 2000 when both parties rested evidence in toto and submitted the case to the court for oral arguments.
The court entered its final ruling on December 21, 2000, wherein the judge denied the petition for revocation filed by George Constance, reinstated Nathaniel Constance, II as the administrator of the John Nyema Constance, Sr. Intestate Estate, and revoked the curator’s administration of the said estate. The appellant excepted to the court’s final ruling and announced an appeal to the Supreme Court of Liberia, which appeal was granted.

Thereafter, on January 2, 2001, the appellant filed his bill of exceptions, which was the last act done or performed by him in the appeal process. On March 19, 2001, the appellee, Nathaniel Constance, II, obtained a certificate from the clerk of the probate court to the effect that from the day the final judgment was rendered, i.e. December 21, 2000, up to and including the date of the certificate, a period of eighty-seven (87) days, the appellant had neither filed an approved appeal bond nor a notice of the completion of his appeal.
On March 30, 2001, the appellee filed a motion in the Supreme Court praying for the dismissal of the appellant’s appeal because of the latter’s failure to perfect his appeal within the time allowed by law. We note from the records in the case file that the appellant did not file any resistance to the appellee’s motion to dismiss, even up to the hearing of the said motion by this Honourable Court on December 3, 2001, a period of nine (9) months from the date of filing of the motion.
This Court being one of record, the absence of a resistance to the motion leaves it with no choice but to grant the same. Our procedural statute provides that if a party fails to appear to oppose a motion, the motion shall be granted on proof of the service of notice to that party, as in the instant case. Civil Procedure Law, Rev. Code 1:10.7. Moreover, when the motion to dismiss was argued before this Bench, the appellee cited and relied on the statute governing appeals. The statute provides:

“The following acts shall be necessary for the completion of an appeal;

1. Announcement of the taking of the appeal;
2. Filing of the bill of exceptions;

100. Filing of an appeal bond;

4. Service and filing of notice of completion of the appeal.

Failure to comply with any of these requirements within the time allowed by statute shall be ground for dismissal of the appeal.” Civil Procedure Law, Rev. Code 1:51.4.
The appellee also contended that his motion to dismiss was properly venued before the Supreme Court and could not have been filed in the probate court because the trial court had lost jurisdiction over the case with the filing of the bill of exceptions by the appellant. He relied on section 51.16 of the Civil Procedure Law, which provides as follows:

“An appeal may be dismissed by the trial court on motion for failure of the appellant to file a bill of exceptions within the time allowed by statute, and by the appellate court after filing of the bill of exceptions for failure of the appellant to appear on the hearing, to file an appeal bond, or to serve a notice of completion of the appeal as required by statute.” Civil Procedure Law, Rev. Code 1:51.16.
The facts and circumstances in the instant case bring the said case squarely within the ambit of the above quoted two provisions of our appeal statute. The appellant failed to file an appeal bond and to file and serve notice of his completion of the appeal. The statute says that failure to comply with any one of the four requirements is ground to dismiss the appeal. Further, the dismissal can be done by the trial court if the appellant has not filed his bill of exceptions, which is not applicable to the instant case because the appellant had in fact filed his bill of exceptions. On the other hand, the dismissal can be done by the appellate court if the appellant has failed to file an appeal bond and to serve and file notice of his completion of the appeal, as in the instant case. The violation of the two quoted provisions of the appeal statute by the ap-pellant clearly renders his appeal dismissible, and we so hold.
Having held hereinabove that the appellant’s appeal is dismissible, and is in fact hereby dismissed, this Court, in so doing, must also pass on other points raised by appellant during the arguments of the motion to dismiss before this Honourable Court. Counsel for the appellant reiterated his contention, originally raised in the trial court, that the appellee bore no blood relationship to the deceased and that as the appellee therefore lacked any right of inheritance, he should not be permitted to administer the decedent’s estate, but rather that the said estate should be administered by the appellant, who is the nephew of the decedent, in conjunction with other collateral heirs of the deceased.
The trial judge ruled denying the petition for revocation in the following words:

“From the evidence adduced by both sides, this court finds it impossible to believe that the respondent’s mother was a girlfriend of the late J. Nyema Constance, Sr. and had the respondent by Joma Massaquoi because there are no real evidence of these allegations. J. Nyema Constance, Sr. is dead and cannot testify in this case, and even were he to tell this court that the respondent is not his child, a scientific blood grouping test result would be necessary to prove such statement. This is not, however, the case here. The respondent grew up knowing only the late J. Nyema Constance, Sr. as his father. To divest this long vested interest without evidence to the contrary would not only be illegal but immoral. Wherefore, and in view of the foregoing, this court denies the petitioner’s petition for revocation of the respondent’s letters of administration and hereby reinstates the administrator, the respondent. The administration by the curator is hereby revoked….”
We note that the appellant, George Constance, is nephew of the late General John Nyema Constance Sr., while the appellee, Nathaniel Constance, II, is the son of General Constance, Sr. Yet, the nephew seeks to remove the son from administering his father’s estate on the ground that the son is not the biological son of the deceased. The records available to this Court indicate that the appellee had throughout his life been regarded as the son of the deceased, had lived in the house with the other children, and had carried the deceased name. Yet, in spite of these facts, the appellant contends that the appellee is not the son of the deceased.

The scenario in the instant case is similar to that in the cases Knowlden v. Johnson el al., 39 LLR 345 (1999), decided by this Court during its March Term, 1998, and The Heirs of Augustus W. Cooper v. The Heirs of Jesse Reed Cooper, [1999] LRSC 41; 39 LLR 750 (1999), decided December 17, 1999, at the October Term, 1999, of this Court. See also King and Houston v. Cooper-Harris, [2000] LRSC 8; 40 LLR 70 (2000). The disposition of the instant case is guided by the holdings of this Court in the two cases cited above and others on the same point. Accordingly, we find that the trial judge’s ruling was in perfect harmony with this Court’s holding in the cited cases, and for which reason we herein incorporate the trial judge’s ruling as part of this opinion. But more than that, why would a nephew seek to dispossess the son of a deceased? As the trial judge ruled, it is not only illegal but immoral. The law provides that persons who are distributees of an intestate estate and who are eligible, qualify in the following order:

1. The surviving spouse;
2. The children;

100. The grandchildren;

4. The father or mother;
5. The brother or sister;
6. Any other persons who are distributees, preference however being given to the person entitled to the largest share in the estate.” Decedents Estates Law, Rev. Code 8:111.1.

The categorization by the Decedents Estates Law removes from the contention of the appellant, who is a nephew of the deceased, the claim that he should be given preference over the son.
In his arguments before this Court, counsel for the appellant informed the Court that Mr. John Nyema Constance, Jr., who was the first administrator of the decedent intestate estate but died subsequently, was survived by his mother, Annie Yancy Constance, his brother Nathaniel, the appellee herein, his sister Annie Constance, and his minor daughter. Hence, even if it were true that Nathaniel Constance II was not legally qualified to administer the estate of the late Gen. John Nyema Constance. Sr., and since the appellant argued that Gen. Constance had only one child, John, Jr., who also is now dead, then the person next in line to inherit would be the minor grandchild of the decedent, General Constance. Sr. That being the case, and the appellant having informed this Court that the child is living with her grandmother, the person best situated as the proper party to petition for letters of administration would be the person with whom the child is living or who has legal custody or guardianship rights over the minor child, the only child of John Constance, Jr. who, according to the appellant, was the only legally recognized child of John Constance, Sr., the property owner.

Appellant George Constance, who is only a nephew of the decedent and who does not have legal custody or guardianship of the child whom he says is the sole surviving heir to the property, i.e., the grandchild of the decedent, was therefore without legal standing to bring the suit challenging Nathaniel Constance, II, as not being the child of General Constance. Hence, the trial judge was legally correct in denying George Constance’s petition to revoke the letters of administration issued to Nathaniel Constance, II. Therefore, this Court now holds, the same as was ruled by the trial judge, that Nathaniel Constance, II has the legal capacity to be appointed administrator of his late father’s intestate estate. Accordingly, this Court, having herein granted Appellee Nathaniel Constance’s motion to dismiss the appeal of Appellant George Constance, the case falls back and rests on the ruling or final judgment of the trial judge wherein he reinstated Nathaniel Constance, II, as the lawful administrator of General Constance’s Intestate Estate. The dismissal of the appeal leaves the judge’s final ruling undisturbed and enforceable.
Further, since General John Nyema Constance, Sr. was presumed to be dead since 1983, and since John Constance, Jr. did not have the estate closed during his nine (9) years of administration, this Court, in confirming Nathaniel Constance as the legal administrator of the estate and in remanding the case to the probate court, instructs that the estate be closed within six months of the reading of this Count’s mandate.
Wherefore, and in view of the foregoing laws, facts and circumstances, it is the ruling of this Court that the motion to dismiss the appeal, being well grounded in law, the same is hereby granted in its entirety. The appeal is ordered dismissed and the final judgment of the trial judge ordered enforced. The Clerk of this Court is hereby ordered to send a mandate to the Monthly and Probate Court for Montserrado County ordering the judge therein presiding to resume jurisdiction over the case and to enforce its judgment and have the estate closed within six months from the date of the reading of this Court’s mandate. Costs are ruled against the appellant. And it is hereby so ordered.

Motion granted; appeal dismissed.