Cleaveland v. Draper

• Citation: 80 N.E. 227,194 Mass. 118
• Parties: CLEAVELAND et al. v. DRAPER.
• Decision Date: 26 February 1907
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

194 Mass. 118

80 N.E. 227

CLEAVELAND et al. v. DRAPER.

Supreme Judicial Court of Massachusetts, Suffolk.

February 26, 1907

COUNSEL

Arthur H. Russell, for appellants.

OPINION

KNOWLTON C.J.

These appellants from a decree of the probate court are the heirs at law and next of kin of Sarah A. Ellis, of whose estate the respondent is administrator. Nearly three years after the respondent's appointment, an order of distribution of the personal estate in his hands was duly made by the probate court, directing the payment of the entire balance to Frank H. Skinner, a nephew of the deceased, who was adjudged by the court to be her next of kin. These petitioners are her grandchildren. The intestate died on November 20, 1899. The administrator ascertained from Augustus H. Ellis, a nephew of her deceased husband, who was her only connection then known and whose relations with her were such as should have made him conversant with her affairs, that her son George W. Ellis moved to Chicago, Ill., where it was reported that he was married and had three children, Edwin S., Joseph F. and Gertrude. It was also ascertained that he returned to Massachusetts and died at Canton in 1876. Augustus H. Ellis informed counsel that he was of opinion that the children of George W. Ellis, if any survived him, remained in Chicago and never lived in Massachusetts. In February and March, 1900 counsel caused a notice asking for information in regard to these persons by name, in such form as would be likely to bring a response if it came to their knowledge, to be published six times in the Chciago Daily News, a newspaper supposed to have the largest circulation of any in Chicago. In response to this, one Ida Norris appeared, and proved herself to have been the wife of Edwin S. Ellis, having married since his death. From her it was ascertained that Edwin S. Ellis had a brother Joseph F. and a sister Gertrude, that Gertrude had married one Frank Cleaveland who was reported to be engaged in the hotel business in Portland, Or., and that Joseph F. Ellis, to the best of her information, was then living in Chicago. Thereupon, on April 10, 1900, letters were addressed to Mrs. Frank Cleaveland, Portland, Or., and to Joseph F. Ellis, Chicago, Ill. These letters were returned by the post-office department, underlivered. In February, 1902, Ida Norris informed counsel that she had been unable, by examination of directories and by inquiries, to obtain any further information as to the whereabouts of either of these persons, except a rumor that one of them had died. She said that her latest information was that Gertrude had been living 14 years before, and Joseph F. Ellis 12 years before. No mention was made of the petitioner, Mary A. Vore. The counsel made no further search, but communicated these facts to the administrator. In September, 1903, the administrator published a notice in the Boston Herald, saying that if the heirs of George Ellis, resident of Boston in 1878, would address Box 1843, Boston, they would learn something to their advantage. Having received no reply to this advertisement, nor any further information, he paid over the money to Skinner under the order of distribution, about 7 months later.

The petitioners had no knowledge of any of these things until after the money had been paid. Upon their petition, a decree of the probate court was entered on March 1, 1905, revoking the order of distribution. The proceedings now before us are upon their subsequent petition for an order of distribution directing the payment of the money to them. On this petition an order was entered reaffirming the former decree, except so far as it finds Frank H. Skinner to be the only person entitled to the balance of said estate, and decreeing that these petitioners and the legal representative of the estate of Joseph F. Ellis are entitled to this balance, each to one-third part. The decree also recites that, it appearing that all of said balance has been paid to ...