Dunlop v. Claussen
| Citation | 313 Mass. 715,48 N.E.2d 919 |
| Parties | DUNLOP v. CLAUSSEN. |
| Decision Date | 13 May 1943 |
| Court | United States State Supreme Judicial Court of Massachusetts |
OPINION TEXT STARTS HERE
Reservation and Report from Probate Court, Middlesex County; Monahan, Judge.
Proceedings in the matter of the estate of Emma Harding Gwillam, deceased, on the claim of Alfred T. Dunlop, opposed by Allie Claussen, administratrix, presented in estate insolvency proceedings to recover funeral expenses. Probate Court on its own initiative raised question of jurisdiction and reported case to Supreme Judicial Court.
Report dismissed.
Before FIELD, C. J., and DONAHUE, QUA, DOLAN, and COX, JJ.
F. Hurtubis, Jr., of Boston, for plaintiff.
R. J. Cram, of Boston, for defendant.
The administratrix of the estate of Emma Harding Gwillam, late of Newton, on July 8, 1942, filed in the Probate Court ‘a representation of insolvency setting forth debts of the deceased amounting to $265; funeral expenses $502.95 and charges of administration $1,500, making a total of $2,267.95; that the total assets of the estate amounted to $579.61. A decree was entered on July 9, 1942, ordering claims of all creditors to be received and examined at the Probate Court on August 20, 1942, and January 11, 1943 and that notice be given accordingly. No account has been filed in this estate. On December 11, 1942, Alfred T. Dunlop, of Newton, filed a proof of claim alleging that the sum of $568.55 was due to him for the funeral, burial, transportation and traveling expenses incidental to the burial of the intestate, which sum he advanced at the request of one of the next of kin. This claim was contested by the administratrix who filed an answer. When this matter came before [the judge of probate] for hearing, no question was raised by any of the parties as to the jurisdiction of the court to receive and examine preferred claims for funeral expenses in insolvency proceedings. The court, on its own initiative, raised the question of jurisdiction. These statements are contained in a ‘reservation and report’ of the judge of probate, who states therein: ‘Pursuant to the provisions of General Laws, Chapter 215, section 13, I reserve and report the case on the facts reported above for the consideration and determination of the Supreme Judicial Court.’
The matter is not properly before us upon this ‘reservation and report.’ The power of a probate judge to ‘reserve and report’ a case to the full court that is conferred by G.L.(Ter.Ed.) c. 215, § 13-the sole source of the power to report-is limited to two classes of cases: (a) cases in which interlocutory decrees or orders have been made, and (6) cases that have been ‘heard for final determination’, in which cases the judge may ‘reserve and report the evidence and all questions of law therein for consideration of the full court, and thereupon like proceedings shall be had as upon appeal.’
The present case does not come within the first of these classes. The question reported does not relate to the decree ...
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O'Brien v. Dwight
...to be determined by the full court.' In the latter case the judge may report questions to 'the full court.' Dunlop v. Claussen, 313 Mass. 715, 716, 48 N.E.2d 919, 920. Since the present case has not been 'heard for final determination' it comes within the second class of cases which may be ......
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Jones, Matter of
...reserve and report a case. Second Bank-State St. Trust Co. v. Linsley, 341 Mass. 113, 116, 167 N.E.2d 624 (1960). Dunlop v. Claussen, 313 Mass. 715, 716, 48 N.E.2d 919 (1943). "This provision does not authorize a report of a part of a case or of specific questions of law arising therein. Th......
- Dunlop v. Claussen