Draper v. Draper

• Decision Date: 08 June 1929
• Citation: 267 Mass. 528,166 N.E. 874
• Parties: DRAPER et al. v. DRAPER (two cases).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

267 Mass. 528

166 N.E. 874

DRAPER et al.

v.DRAPER (two cases).

Supreme Judicial Court of Massachusetts, Middlesex.

June 8, 1929.

Appeal and Report from Probate Court, Middlesex County; John C. Leggatt, Judge.

Petition by Mabel S. Draper another for the purpose of determining whether the omission of William W. Draper from the will of his mother was intentional. A decree adverse to petitioners was entered, a petition to vacate was denied, and from these two rulings petitioners appeal; the case being reported. Reversed.

J. L. Harvey, of Waltham, for petitioners.

W. W. Clarke and J. G. Schumb, both of Boston, for respondent.

WAIT, J.

‘If a testator omits to provide in his will for any of his children or for the issue of a deceased child, they shall take the same share of his estate which they would have taken if he had died intestate, unless they have been provided for by the testator in his lifetime or unless it appears that the omission was intentional and not occasioned by accident or mistake.’ G. L. c. 191, § 20.

The testatrix, who died in 1923, by her will made in August, 1922, gave all her property, real and personal, to her daughter-in-law, widow of her son Ernest, outright except a savings bank deposit which was given to her in trust for Ernest's minor children. The will was allowed and, within a few months, the executor paid over all but a small balance of the estate.

More than three years thereafter the executor received notice from a son of the testatrix inquiring about his share in his mother's estate. No provision had been made for him in her lifetime. The will contained no mention of nor allusion to him. He had gone away from her home in 1882 in part because he had not been pleased when, in 1877, she had married for a second time. He had not written to her since about 1885; he had not been heard of by her for thirty-five years before her death; and he had been mourned by her. Under the statute quoted, he was entitled to one-half of her estate, unless the omission to provide for him in her will appeared to be ‘intentional and not occasioned by accident or mistake.’

The daughter-in-law for herself and as guardian of her minor children, and the executor joined in a petition to the Probate Court to determine whether the omission of the son from the will was intentional and not occasioned by accident or mistake. The court, after hearing, entered a decree that the omission was not intentional, and was occasioned by accident and mistake. An appeal was claimed.

Thereafter the appellants filed a petition that the decree be vacated and further evidence be heard, accompanied by affidavits of evidence alleged to be newly discovered. This petition was denied, and appeal was claimed.

Both appeals are now before us, with a report of the findings of the judge and of the evidence.

There is no merit in the second appeal. Whether or not to reopen the decree rested in the sound discretion of the judge of probate. Davis v. Boston Elevated R. Co., 235 Mass. 482, 126 N. E. 841. No error of law appears in the denial. The evidence set out by the affidavits, even if it were newly discovered, was only cumulative. The judge properly could decide that it would not change his findings.

The other appeal presents more difficulty. As we interpret the report the judge did not decide merely that the burden had not been sustained and rests his decision thereon; but made further findings upon the evidence that the omission was not intentional and was occasioned by accident or mistake. All the evidence is reported. The judge's findings are open to review. Howard v. Smith, 249 Mass. 522, 144 N. E. 372.Emery v. Emery, 218 Mass. 227, 228, 105 N. E. 879. The appeal is to be heard and determined by us, as in an appeal in equity. G. L. c. 215, § 9. It is the duty of this court to examine the evidence and decide the case upon its own judgment, giving due weight to the findings of the judge who saw the witnesses, and not to reverse those findings unless they are plainly wrong. Moss v. Old Colony Trust Co., 246 Mass. 139, 144, 140 N. E. 803. As he saw and heard the witnesses, his findings will not be disturbed unless we think them clearly wrong or based upon some error of law. Ryalls v. Sayles, 254 Mass. 63, 149 N. E. 608. He was right in ruling that the burden of proof was upon the petitioners. Converse v. Wales, 4 Allen, 512;Hurley v. O'Sullivan, 137 Mass. 86;Goff v. Britton, 182 Mass. 293, 65 N. E. 379.

In Hurley v. O'Sullivan, supra, this court decided that a mistaken belief that the testator had given a good title to certain real estate to one of his children which led him to omit to...