Connolly v. Phipps

• Citation: 186 N.E. 646,283 Mass. 584
• Parties: CONNOLLY v. PHIPPS.
• Decision Date: 03 July 1933
• Court: United States State Supreme Judicial Court of Massachusetts

283 Mass. 584

186 N.E. 646

CONNOLLY

v.PHIPPS.

Supreme Judicial Court of Massachusetts, Norfolk.

July 3, 1933.

Appeal from Probate Court, Norfolk County; J. R. McCoole, Judge.

In the matter of the estate of Charles Fein, deceased. From a decree of the probate court dismissing the petition of Thomas G. Connolly, opposed by Marie R. Phipps, praying to vacate a decree which disapproved and disallowed a certain instrument as the last will and testament of said deceased, petitioner, the proponent of such instrument, appeals.

Reversed.R. G. Dodge, M. Rosenthal, and T. G. Connolly, all of Boston, for appellant.

D. J. Gallagher and J. P. Keefe, both of Boston, for respondent.

PIERCE, Justice.

This is an appeal by the proponent of an instrument alleged to be the last will and testament of Charles Fein, late of Brookline in the county of Norfolk, deceased, from a decree of the Probate Court for said county dated March 16, 1933, dismissing his petition praying to vacate the decree dated December 19, 1932, that disapproved and disallowed the said instrument as the last will and testament of said deceased, for the reason that the court was without jurisdiction.

Charles Fein died in Brookline, on October 10, 1931. On October 20, 1931, his sister, Marie R. Phipps, filed a petition in the Probate Court for Norfolk County seeking to prove a will executed by him in 1916. On November 25, 1931, Thomas G. Connolly filed a petition in said Probate Court seeking to prove a will alleged to have been executed by said Charles Fein on February 7, 1931. The proponent of the will of 1916 contested the probate of the will of 1931, and filed in the said Probate Court two motions to frame issues for a jury in which Charles Fein was described as Charles Fein late of Norwood and as Charles Fein late of Brookline. These motions were denied but on appeal the decree of the Probate Court was affirmed in this court. Connolly v. Phipps, 280 Mass. 263, 182 N. E. 339. After rescript, a hearing was had in said court and December 19, 1932, a decree was entered ‘disallowing said instrument as the last will and testament of said deceased.’ The proponent, Connolly, claimed an appeal from said decree and seasonably requested a report of material facts. On February 2, 1933, the judge of probate reported the material facts. Thereafter, Connolly filed a petition to vacate said decree dated December 19, 1932, on the ground that at the time of his decease Charles Fein was an inhabitant and resident of the city of Boston and ‘that consequently the probate court for NorfolkCounty has no jurisdiction of the probate of the will of said Charles Fein or of the administration of his estate under the provisions of G. L. (Ter. Ed.) c. 215, § 3.’ On this petition citation was duly issued on February 14, 1933, and service of the same was accepted and acknowledged by the contestants and proponent of the will of 1916. At the hearing on this petition Connolly presented certain requests for rulings of law. Upon these requests the judge of probate, in substance, ruled that the evidence permitted a finding that Fein at his death did not have a domicil in Dorchester; that Fein never established a residence at Norwood; and that he had abandoned his residence in Dorchester and had acquired a new domicil in Brookline. After hearing the Probate Court by decree dismissed the petition on March 16, 1933, and Connolly appealed to this court. The only question presented is ‘Did the Probate Court have jurisdiction in the premises?'

So far as is material to the issue here presented G. L. (Ter. Ed.) c. 215, § 3 reads: ‘Probate courts shall have jurisdiction of probate of wills, of granting administration on the estates of persons who at the time of their decease were inhabitants of or residents in their respective counties.’ This statute has been construed as giving to a probate court jurisdiction of the probate of wills only of such inhabitants as have their domicil within the county at their death. Harvard College v. Gore, 5 Pick. 370, 379. See Emery v. Emery, 218 Mass. 227, 228, 105 N. E. 879;Glass v. Glass, 260 Mass. 562, 565, 157 N. E. 621, 53 A. L. R. 1157. In the instant case the judge of probate ruled rightly that the question before the court was one of jurisdiction and not of venue. The fact that Connolly, the proponent, brought his petition in Norfolk County does not bar him from raising now a question involving lack of jurisdiction in the court because a party cannot by his own action confer actual jurisdiction upon a court, which by statute has no jurisdiction of the subject matter. Eaton v. Eaton, 233 Mass. 351, 364, 124 N. E. 37, 5 A. L. R. 1426;Paige v. Sinclair, 237 Mass. 482, 483, 130 N. E. 177.

The material facts disclose that Charles Fein died at Brookline, October 10, 1931. He was fifty-nine years of age, was unmarried, and had worked for thirty-five years as a bookbinder at Norwood. He had lived as a roomer and boarder for some twelve years at the house of Mrs. McNerney, in Dorchester, traveling each day by train to his work in Norwood. Except for brief vacation intervals he had not been away from Mrs. McNerney's house from the time he went to live there until about September 19, 1931. In July, 1931, he became ill and was obliged to stop work. In August, 1931, Mrs. McNerney said to him in the course of a talk between them,...