Culhane v. Foley

• Court: United States State Supreme Judicial Court of Massachusetts
• Citation: 26 N.E.2d 331,305 Mass. 542
• Parties: CULHANE v. FOLEY.
• Decision Date: 28 March 1940

305 Mass. 542
26 N.E.2d 331

CULHANE
v.
FOLEY.

Supreme Judicial Court of Massachusetts, Norfolk.

March 28, 1940.

Petition by Gerald J. Culhane against William J. Foley, executor of the will of Kate S. Gallaher, deceased, for professional services in connection with the administration of the estate. From a decree for the petitioner, defendant appeals.

Affirmed.

[26 N.E.2d 331]

Appeal from Probate Court, Norfolk County; McCoole, Judge.
F. H. Harding and G. J. Culhane, both of Boston, for petitioner.

J. F. Connolly, of Boston, for respondent.

LUMMUS, Justice.

Upon a petition under G.L.(Ter.Ed.) c. 215, § 39, the Probate Court ascertained and determined and amount due the petitioner for professional services, including expenses, as an attorney at law rendered to the respondent as proponent and executor of the will of Kate S. Gallaher, in connection with the administration of her estate, to be the amount of $12,000. Moushegian v. Sheppard, 279 Mass. 49, 180 N.E. 619. The respondent appealed.

The judge made no report of facts. The evidence, however, is reported. The petitioner contends that the failure to include in the reported evidence the printed record on appeal in Foley v. Philbrook, Mass., 15 N.E.2d 452, in which case most of the petitioner's services were performed, and the proponent's brief in that case, both of which were introduced in evidence as exhibits upon the present petition, makes

[26 N.E.2d 332]

incomplete the record on the present appeal, and precludes a reversal of the decree upon the ground that it was wrong upon all the evidence. Romanausky v. Skutulas, 258 Mass. 190, 194, 154 N.E. 856;Yoffa v. National Shawmut Bank of Boston, 288 Mass. 422, 426, 193 N.E. 22;Paloeian v. Day, Mass., 13 N.E.2d 398.Gleason v. Hastings, Mass., 15 N.E.2d 201;Gorey v. Guarente, Mass., 22 N.E.2d 99. But in the present case duplicates of the omitted exhibits happen to be part of the files of this court on the earlier appeal relating to the same estate, and we may take judicial notice of them. Commonwealth v. DiStasio, Mass., 11 N.E.2d 799. Therefore, the omission is inconsequential.

In a probate appeal with a report of the evidence, the equity rule applies that the appeal opens all questions of fact, discretion and law presented by the record. But the court does not reverse a finding of fact that depends in part at least upon the view taken by the judge of the credibility of oral testimony, unless convinced that the finding is plainly wrong. Trade Mutual Liability Ins. Co. v. Peters, 291 Mass. 79, 83, 84, 195 N.E. 900; and cases collected. King v. Grace, 293 Mass. 244, 248, 200 N.E. 346;O'Reilly v. O'Reilly, 293 Mass. 332, 199 N.E. 741;Burnham v. Prudential Ins. Co., 295 Mass. 387, 389, 3 N.E.2d 754;Spiegel v. Beacon Participations, Inc., 297 Mass. 398, 408-410, 8 N.E.2d 895; Denault v. Cadorette, 298 Mass. 67, 68, 9 N.E.2d 383;Knowles v. Newhall, Mass., 21 N.E.2d 942;Copperman v. Turner, Mass., 22 N.E.2d 23;Hiller v. Hiller, Mass., 25 N.E.2d 163. See, also, Long v. George, 296 Mass. 574, 579, 7 N.E.2d 149.

Many of the facts are stated in the opinion in Foley v. Philbrook, Mass., 15 N.E.2d 452, in which a decree denying a motion for jury issues filed by the contestants of the will, four cousins who were the heirs at law, was affirmed. Later, on the eve of the hearing in the Probate Court upon the allowance of the will, a compromise was made by which the contestants received $10,500 and withdrew their opposition. The will was then allowed, and the respondent was appointed executor. He...