Bonnemort v. Gill

• Decision Date: 08 January 1897
• Citation: 167 Mass. 338,45 N.E. 768
• Parties: BONNEMORT v. GILL et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

167 Mass. 338

45 N.E. 768

BONNEMORT v. GILL et al.

Supreme Judicial Court of Massachusetts, Norfolk.

January 8, 1897

COUNSEL

William

H. Baker, for petitioners.

James E. Cotter and Charles F. Jenney, for executor.

OPINION

KNOWLTON J.

The petitioners are executors of the will of Mary E. Metcalf late of Orange, N.J., and her two minor children, who appear by their father, as next friend. The children are the sole legatees and devisees under her will. Mary E. Metcalf was one of nine nephews and nieces of Howard Gill, who all appealed from the decree of the probate court admitting to probate the last will and testament of said Gill. While their appeal was pending in this court, she died, and afterwards, without the issuing of any notice or citation to her minor children, who lived in New Jersey, or to her executor, the case proceeded to trial upon the appeal of the other eight appellants, whose interests were identical with hers, and the will was proved and allowed in this court. John Gill, one of the present petitioners, was one of the appellants, and, on his personal account, was a party to the proceedings until the final decree. Before the trial he had been appointed executor of the will of said Metcalf in New Jersey but he did not assume to represent her estate in the appellate proceedings here. Her will has never been proved in this commonwealth. The petitioners asked the court to vacate the decree allowing the will of Howard Gill, and to permit them to try the appeal taken by said Metcalf in her lifetime and they requested the court to rule that upon these facts they were entitled to try the appeal as if the decree allowing the will had not been made. Their exception to the refusal of the judge so to rule presents the only question in the case. Their contention is, in substance, that, if one of several appellants in such a case dies, the court has no jurisdiction to go on and adjudicate upon the question whether the alleged will shall be allowed, without issuing a formal notice or citation to the representatives of the deceased appellants, notwithstanding that they are not residents of the commonwealth, and that they have actual knowledge of the pendency of the appeal, and do not desire to appear to prosecute it. The executor of the deceased appellant's will had as much authority to appear and ask to be admitted to prosecute this appeal before the trial as he has now. He knew all the facts, and it is not to be supposed that his efforts to prevent the allowance of the will at the trial would have been greater or more effectual if he had appeared in his representative capacity than they were while he was acting for himself. It can hardly be doubted that the father and next friend of the infant petitioners knew of the pendency of his wife's appeal at the time of her death, and was aware of the subsequent proceedings in which her executor was personally a participant. If he had wished to have his children represented at the trial, he had the same right then as now to appear as their next friend. The contention of the petitioners is founded on a mistaken conception of the relations of the heirs of the deceased person to the question whether the instrument shall be allowed as his will. All his next of kin are interested in the question, but no one of them is a necessary party to the proceedings to determine it. The law does not require that a personal notice shall be given to any one of them. Laughton v. Atkins, 1 Pick. 535-547; Loring v. Steineman, 1 Metc. (Mass.) 204-208; Marcy v. Marcy, 6 Metc. (Mass.) 360-368; Crippen v. Dexter, 13 Gray 330-334; Arnold v. Sabin, 1 Cush. 525-530. Under the rules of court, in ordinary practice, a general notice is given, which is sufficient to justify final proceedings, even if in fact it fails to reach some of the persons interested. If some of the heirs are infants, idiots, or insane persons, their disqualification does not deprive the court of its power to proceed without them. Parker v. Parker, 11 Cush. 519-524; Wells v. Child, 12 Allen, 330; Schultz v....