Donnell v. Goss

• Decision Date: 01 June 1929
• Citation: 166 N.E. 725,267 Mass. 444
• Parties: DONNELL v. GOSS.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

267 Mass. 444

166 N.E. 725

DONNELL

v.GOSS.

Supreme Judicial Court of Massachusetts, Middlesex.

June 1, 1929.

Appeal from Probate Court, Middlesex County; Charles N. Harris, Judge.

Petition by Samuel Donnell for revocation of a decree allowing the will of Susan P. Harrold, opposed by Willis C. Goss, executor. From a decree dismissing petitioner's appeal from a decree dismissing the petition, he appeals. Reversed.

See, also, 161 N. E. 896.

S. H. Donnell, of Peabody, for petitioner.

S. Maylor, of Boston, for respondent.

RUGG, C. J.

This is an appeal by Samuel Donnell from a decree of the probate court dismissing his appeal from a decree dismissing his petition for the revocation of an earlier decree allowing the will of Susan P. Harrold. The pertinent facts are these: The decree dismissing the petition was filed on December 19, 1928. On the following day the petitioner filed a request for a report of the material facts under G. L. c. 215, § 11. On January 7, 1929, he seasonably claimed an appeal, and on January 8, 1929, the judge filed a report of his findings of fact, although these findings were dated December 17, 1928. On January 11, 1929, the petitioner sent check to the register of probate to cover the estimated cost of printing the papers necessary for the prosecution and entry of his appeal. On February 8, 1929, the present motion to dismiss the appeal was filed because it had not been entered ‘as soon as may be’ in this court and the printing of the papers had not been completed. Under date of May 11, 1929, the judge filed findings of fact supplementary to those dated December 17, 1928, and filed on January 8, 1929. These supplementary findings of fact, in substance, are: ‘Upon dismissing said petition for revocation, I filed a Memorandum of Decision dated December 17, 1928. Thereafter, the appellant requestedthree additional findings of fact, and I assigned a date for a hearing thereon for some time during the week beginning February 11, 1929. Between February 8 and February 16, counsel conferred with one another by telephone with respect to the suggested changes, and counsel for the appellee stated that he did not assent to the first request, but was willing that it should be made if in my opinion it ought to be made. To the other two, he did assent, but said that he did not care to be personally heard on the question of the suggested changes. Thereupon, at some time between February 16 and February 28, but before the hearing on the motion to dismiss the appeal, which took place on February 28, I agreed to, and did, make the findings requested, and embodied them, in substance, though not in their exact language, in said Memorandum dated December 17, 1928.’

Thus it appears that the appealing party seasonably claimed his appeal and immediately made the deposit required to cover the cost of printing, but he thought that the findings of fact were not sufficiently clear to enable him to present fairly to this court the questions of law desired to be raised by that appeal. He...