Crowell v. Davis

• Citation: 123 N.E. 611,233 Mass. 136
• Parties: CROWELL et al. v. DAVIS.
• Decision Date: 04 June 1919
• Court: United States State Supreme Judicial Court of Massachusetts

233 Mass. 136

123 N.E. 611

CROWELL et al.

v.DAVIS.

Supreme Judicial Court of Massachusetts, Barnstable.

June 4, 1919.

Appeal from Supreme Judicial Court, Barnstable County.

Petition by Hiram C. Crowell and others against William J. Davis, for leave to enter and prosecute an appeal from a decree of the probate court allowing an instrument as the last will of Rebecca H. Baker. From a final decree permitting the appeal, Davis appeals. Affirmed.

William A. Morse, of Boston, and Frederick C. Swift, of Yarmouth, for appellant.

William D. Turner, of Boston (Henry M. Hutchings, of Boston, of counsel), for appellees.

CROSBY, J.

This is an appeal from a final decree, entered by a single justice of this court upon a petition brought under R. L. c. 162, § 13, allowing the petitioners to enter and prosecute an appeal from a decree of the probate court for the county of Barnstable, dated March 6, 1918, allowing a certain instrument dated February 18, 1916, as the last will of Rebecca H. Baker, late of Dennis, in the county of Barnstable. An appeal from the decree allowing the will has been taken by an heir at law of the testatrix and is now pending; a certificate under equity rule XXXVI has been issued by the judge of probate, which recites that the matters relied on by the appellant are deemed a proper subject for judicial inquiry before a jury, and issues for a jury have been framed by a justice of this court.

The record shows that the testatrix left an earlier will, dated and executed in the year 1908, but that the petitioners had no knowledge of its existence until after the time for filing an appeal from the allowance of the will of 1916 had expired. It is alleged by the petitioners that the later instrument ought not to be allowed as the last will of the deceased, because it was not duly executed by her while of sound and disposing mind and memory, and because it was obtained by fraud and undue influence. The earlier will was filed in the probate court soon after it was found, and a petition for its probate is pending.

At the hearing before the single justice in this case, copies of both wills were offered in evidence, from which it appears that under the will of 1908 the petitioner Susan K. Crowell was bequeathed $15,000 in money, certain specific articles of personal property, and a wood lot in West Dennis; while under the will of 1916 she was given only a legacy of $10,000. The petitioner Hiram C. Crowell under the 1908 will was given a legacy of $1,000; while under the will of 1916 he was to receive nothing. In entering a decree upon the petition the single justice in effect ruled that the petitioners were persons ‘aggrieved’ within the meaning of R. L. c. 162, § 13; and it must be assumed that he found the failure to claim an appeal from the decree of the probate court was without default on their part and that justice required a revision of the case. The discretionary power vested in the court under the statute (section 13) cannot be said to have been improperly exercised in the case at bar. Hutchings, Petr., 122 N. E. 728.

The question remains whether as matter of law the petitioners are persons ‘aggrieved’ as that word is used in the statute; in other words, is a person who is named as a legatee in an earlier will a person ‘aggrieved’ by the allowance of a later will, under which he would take nothing or less than if the earlier will were established?

This precise question presented does not appear to have been decided by this court, although courts in many other jurisdictions have determined that such legatees are entitled to appear and contest the allowance of a later will.

In the case of Old Colony Trust Co. v. Bailey, 202 Mass. 283, 88 N. E. 898, it was held by this court that legatees are not entitled as of right to petition for the probate of a will. It was said by Chief Justice Knowlton, at page 290 of 202 Mass., at page 900 of 88 N. E., that--

‘It is also thue, as a general rule, that the interests of legatees claiming under a will are properly and sufficiently represented by the executor, and * * * individual legatees are not entitled as of right to appear separately and become parties to a petition for the probate of a will. The representationof the estate and the conduct of the trial usually should be left to ...