Coghlin v. White

• Decision Date: 03 October 1930
• Citation: Coghlin v. White, 273 Mass. 53, 172 N.E. 786 (Mass. 1930)
• Parties: COGHLIN v. WHITE.
• Court: Supreme Judicial Court of Massachusetts

273 Mass. 53

172 N.E. 786

COGHLIN

v.WHITE.

Supreme Judicial Court of Massachusetts, Worcester.

Oct. 3, 1930.

Appeal from Probate Court, Worcester County; Harry H. Atwood, Judge.

Petition by Peter A. Coghlin, administrator with the will annexed of the estate of Myrtle Coghlin, deceased, for the probate and allowance of the lost will of Caroline M. Snow, deceased. From a decree allowing the will, Forest S. White, administrator of the estate of Salem H. White, deceased, appeals.

Affirmed.

John M. Thayer, of Worcester, for appellant.

Victor E. Runo and Russell W. Anderson, both of Worcester, for appellee.

FIELD, J.

The probate court of Worcester county entered a decree that an instrument ‘now lost, and executedSept. 1, 1926,’ whereby Caroline M. Snow, late of Worcester, deceased, left the residue of her estate to her daughter, Myrtle Coghlin, and appointed said daughter executrix thereof, ‘be approved and allowed as the last will and testament of said deceased.’ The administrator of the estate of Salem H. White, who was named as residuary legatee in a prior instrument, dated September 23, 1922, purporting to be a will of the deceased, appealed.

The judge reported ‘the material facts found by him.’ G. L. c. 215, § 11. He found ‘that the deceased, Caroline M. Snow, on September 1, 1926, executed an instrument as her last will substantially in the language in which it is allowed by this decree. The testatrix went with her husband to the office of D. Gage Hunt in Lynn, Massachusetts. Mr. Hunt was a Justice of the Peace and Insurance Agent who had had some experience in making out legal papers. He talked with the parties. Mrs. Snow stated that she wished to give all her property to her daughter because it had come from her first husband, the daughter's father. * * * Mrs. Snow took the instrument with her from Mr. Hunt's office. Later, when Mrs. Snow was living with her daughter Myrtle and the daughter's husband, Peter A. Coghlin, * * * she gave the instrument to one of them for safe-keeping. The will was either lost or mislaid and has never been found. At some time Mrs. Snow wished to see the will and search was then made for it, but it could not be found. Mrs. Coghlin thought she had given it to her husband to take to his office to put in his safe, but he did not remember this circumstance. Mrs. Snow stated that it would not make any difference anyway if the will was lost, because the daughter was her only heir.’ The judge further found ‘that the testatrix executed the instrument dated September 1, 1926, which is allowed by the decree now appealed from, in the presence of three attesting witnesses and that the attesting witnesses signed it in the presence of the testatrix, and that she was at that time of full age and sound mind; that she was not under the influence or domination of anyone and that the instrument represented her wishes * * * that this instrument was never destroyed by the testatrix nor by her direction and was never revoked by the...