Bartlett v. Slater

• Decision Date: 12 March 1903
• Citation: 183 Mass. 152,66 N.E. 631
• Parties: BARTLETT et al. v. SLATER et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

183 Mass. 152

66 N.E. 631

BARTLETT et al. v. SLATER et al.

Supreme Judicial Court of Massachusetts, Worcester.

March 12, 1903

COUNSEL

Whipple, Sears &

Ogden and Alex. Lincoln, for appellant.

Samuel Hoar, T. Hovey Gage, Jr., and Frank F. Dresser, for appellees.

OPINION

BRALEY J.

The petitioners, as executors of the will of Horatio N. Slater petitioned the probate court for the construction of the will of their testator, and for instructions as to their powers and duties thereunder. On October 31, 1902, that court entered a decree thereon, from which decree, on the 28th day of the following November Mabel Hunt Slater, as widow of Horatio N. Slater, and also as statutory guardian of Horatio N. Slater, Mabel H. Slater, and William H. M. Slater, minor children of Mabel Hunt Slater and the testator, appealed to this court and filed in the probate court for the county of Worcester copies of her notices and claims of appeal. Subsequently the executors appeared and filed a motion to dismiss her appeal as to them, on the ground that on the entry of the same in this court the appellant, individually and as statutory guardian of said minors, did not file a statement of her objections to the decree appealed from. The guardian ad litem, who had acted in behalf of the minor children in the probate court and consented to the decree, was appointed such guardian in this court, and filed a similar motion. At a hearing before a single justice of this court, both motions to dismiss were granted. The appellant at the hearing presented some 12 requests for rulings. The eleventh and twelfth asked the court to rule that Mabel Hunt Slater, as guardian of her minor children 'had the power and authority' to claim and enter the appeal, and if the guardian ad litem appointed by the probate court failed so to do in 'matters affecting the interest of his minors,' then such appeal could be claimed and entered by the statutory guardian. These two requests were not insisted upon at the argument, and we treat them as waived. See Elder v. Adams, 180 Mass. 303, 62 N.E. 373.

The other requests presented in various forms the proposition put upon the brief for the appellant, that 'the sole question * * * is whether the jurisdiction of the Supreme Judicial Court to entertain an appeal from the probate court in the exercise of its equity jurisdiction is dependent upon the filing of a statement of objections simultaneously with the entry of the appeal.'

The right of appeal from a decree of the probate court to this court is given solely by statute, and, in order that it may be sustained, the right of the appellant must be clearly made to appear and the statutory requirements governing and regulating such an appeal complied with. This is not a mere formality, but is a matter of following conditions imposed by statute, and the reasons for the necessity of a compliance with these requirements of law are stated in Bergen v. Jones, 4 Metc. 371, 372, by Chief Justice Shaw, as follows: 'It is of great importance that all the rules of law, whether prescribed by statute or otherwise, regulating the sitting of courts, the return of process, and the entry of actions, the time and place for entering appeals, for entering exceptions, and also for entering causes in a court below, which have been remanded there for trial, should be plainly expressed, well understood, and strictly complied with. It is this which gives the court jurisdiction of the parties; and when a court has jurisdiction of the parties, and of the subject-matter, such is the liberality of modern practice that almost every other kind of error and defect may be corrected by amendment. But when it is left doubtful, either by the uncertainty of the law or by the irregularity of the proceedings, when and where the parties are to have day in court for the judicial contestation of their rights, no amendment can remove such uncertainty, or enable the court safely to proceed.'

At the time when this appeal was claimed and taken, the course of procedure open to a person aggrieved by such a decree was provided by Rev. Laws, c. 162, §§ 9, 10, 11, 12, and 15. Section 10 provides that 'notice of the appeal shall be filed in the registry of probate and the appeal shall be entered in the Supreme Judicial Court within thirty days after the act appealed from. Upon the entry of the appeal the appellant shall file a statement of his objections to the act appealed from. A copy of such notice, and of so much of the record of the probate court as relates to the appeal, shall be filed in the Supreme Judicial Court upon the entry of the appeal, or as soon as may be thereafter.' Under this section the jurisdictional requirements are: That the appellant must give notice that the appeal is to be filed in the Supreme Judicial Court within 30 days after the act appealed from; a copy of such notice, and so much of the record of the probate court as relates to the appeal, are to be filed upon its entry, or as soon thereafter as may be; and at the time of entry a statement is to be filed of the objections of the appellant to the decree appealed from. The appellant failed fully to comply with these requirements, as she filed no statement of her objections to the decree appealed from at the entry of the appeal, and now claims and argues that the objections are not an essential part of the appeal, but are in the nature of a bill of particulars, and may, in the discretion of the court, be filed after the entry of the appeal. But the object and purpose of requiring objections to be filed by the appellant more clearly appear if we look at the history of the law embodied in this section. In all previous statutes regulating appeals from the probate court to the Supreme Judicial Court, from St. 1783, c. 46, to St. 1888, c. 290, the appellant has been required to file his reasons of appeal in the registry of probate, and thereafter to serve an attested copy upon the adverse party, either 14 days at least 'before the sitting of the Supreme Court of Probate at which the trial is to be had,' or, since Rev. St., 14 days before the appeal was entered. St. 1783, c. 46, § 4; St. 1817, c. 190, § 7; Rev. St. c. 83, § 37; Gen. St. c. 117, § 10. Pub. St. c. 156, § 8, contained the...