Boston Safe Deposit & Trust Co. v. Wickham

• Decision Date: 16 January 1926
• Citation: 254 Mass. 471,150 N.E. 223
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: BOSTON SAFE DEPOSIT & TRUST CO. v. WICKHAM et al.

254 Mass. 471

150 N.E. 223

BOSTON SAFE DEPOSIT & TRUST CO.

v.WICKHAM et al.

Supreme Judicial Court of Massachusetts, Suffolk.

Jan. 16, 1926.

Appeal from Probate Court, Suffolk County.

Petition by the Boston Safe Deposit & Trust Company for proof of will, contested by Huntington W. Wickham and others. From a decree denying a motion to frame issues for trial to a jury, contestants appeal. Motion to dismiss appeal for want of prosecution denied.

F. W. McEnery, of Boston, for appellants.

C. M. Rogerson, of Boston, for appellee.

RUGG, C. J.

This is a petition in the probate court for the proof of a will. Certain contestants filed a motion that issues concerning the execution of the will be framed for trial to a jury. At a hearing upon that motion a commissioner was appointed and the testimony of witnesses was taken. Decree denying that motion was entered on July 31, 1925. On the same day the contestants appealed from that decree. The contestants made a request for findings of fact on either August 7 or August 13, 1925. The judge of the probate court, although not then required to make report of the material facts found by him because the request was not filed within four days, exercised his discretion so to do and filed that report on October 16, 1925. The case was entered in this court on December 28, 1925.

[1] The petitioner moves that the case be dismissed for want of prosecution. The record as printed covers 395 pages. It is alleged in the petition that the contestants are residents of London, England, and they are not alleged to have been commorant elsewhere. It does not appear when the order to print the record was given by the contestants. For aught that we know the order was given as soon as the case was ripe for such action. On these bald facts it cannot be said that the case was not entered in this court ‘as soon as may be.’ G. L. c. 231, §§ 144, 135; Id. c. 215, § 10. The case is quite distinguishable from Griffin v. Griffin, 222 Mass. 218, 110 N. E. 296,Silverstein v. Daniel Russell Boiler Works, Inc., 252 Mass. --, 149 N. E. 705,Crawford v. Roloson, 252 Mass. --, 149 N. E. 707,West v. Johnson, 252 Mass. --, 149 N. E. 710, and like cases, in all of which more facts appeared showing delay directly attributable to the appealing or excepting party.

[2][3][4][5] The petitioner moves to dismiss the record because as printed it does not contain the report of material facts found by the judge. That report is an essential part of the record and should be printed, in the absence of agreement to the contrary. Such report was filed under G. L. c. 215, § 11. The inference from the terms of that section is that the report is a part of the record. The practice in probate appeals is according to equity so far as practicable and applicable. Churchill v. Churchill, 239 Mass. 443, 132 N. E. 185;Mackintosh, Petitioner, 246 Mass. 482, 141 N. E. 496;Drew v. Drew, 250 Mass. 41, 43, 144 N. E. 763;G. L. c. 215, § 21. In equity, findings of material facts, whether filed voluntarily or in accordance with statutory mandate are a part of the record. Cohen v. Nagle, 190 Mass. 4, 76 N. E. 276,2 L. R. A. (N. S.) 964,5 Ann. Cas. 553;Taylor v. Jones, 242 Mass. 210, 216, 136 N. E. 382, and cases cited; G. L. c. 214, § 23. Without citing the cases which have come to this court under G. L. c. 215, § 11, by appeal from the probate court, an examination of them shows that the report of facts found where made has been printed as a part of the record. Rights of parties may be affected by the findings of fact made under these...