Edwards v. Cockburn

• Decision Date: 14 June 1928
• Citation: 162 N.E. 225,264 Mass. 112
• Parties: EDWARDS et al. v. COCKBURN.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

264 Mass. 112

162 N.E. 225

EDWARDS et al.

v.COCKBURN.

Supreme Judicial Court of Massachusetts, Suffolk.

June 14, 1928.

Appeal from Probate Court, Suffolk County; J. S. Wood, Judge.

Petition by Clarence R. Edwards and others for the probate of the will of Lotta M. Crabtree, contested by Carlotta Cockburn. From a decree allowing proponents' motion to strike her appearance from the record, contestant appeals. Affirmed.L. Withington and J. B. Sullivan, both of Boston, for appellant.

F. H. Chase and R. P. Baldwin, both of Boston, for appellees.

CROSBY, J.

Lotta M. Crabtree died in Boston, September 25, 1924, leaving an instrument purporting to be her last will. Clarence R. Edwards and others, hereinafter referred to as the proponents, named as executors therein, filed a petition for the probate of her will in the probate court for the county of Suffolk. On November 5, 1924, Carlotta Cockburn, hereinafter referred to as the claimant, filed her appearance as a contestant of the will. On November 17, 1924, the proponents, as special administrators of the estate, filed a motion to strike her appearance from the record on the ground that she was not an heir at law or next of kin of Lotta M. Crabtree, hereinafter called the decedent. The issue presented by this motion was tried before the probate court. Much evidence was introduced by both parties in the form of oral testimony, depositions taken upon oral interrogatories, exhibits and other documentary evidence. The petition for probate of the will set forth the names and addresses of six persons, described as cousins of the decedent, as her only heirs at law and next of kin. The decedent had a brother, John Ashworth Crabtree, who predeceased her.

The claimant contends that she is the legitimate daughter of this brother by reason of either an actual or a common-law marriage with one Annie Leopold, and also by virtue of the legitimation of the claimant through his acknowledgment of her as his daughter, and that, accordingly, she is a niece and heir at law and next of kin of the decedent. The judge of probate stated that on all the evidence he was not satisfied that John A. Crabtree was the father of the claimant; he allowed the motion to strike the claimant's appearance from the record, on the ground that she is not an heir at law and next of kin of Lotta M. Crabtree, and filed a ‘Memorandum of Decision and Voluntary Report of Material Facts.’ The claimant appealed from a decree allowing the motion to strike her appearance from the record. On April 2, 1927, she filed in the probate court a request that the judge report the material facts found by him in allowing the motion, and to include therein her requests for rulings of law, for findings of facts, and his disposition thereof. The judge ruled that the voluntary report of material facts stands on the same footing and has the same effect as a report of finding of fact made under G. L. c. 215, § 11, and declined to make the report requested. It also appears that the judge had previously passed upon all of the claimant's requests for rulings of law; that as to the request for findings of specific facts he ruled he could not be required to make them and he denied them except so far as they appeared to have been set forth in his report of material facts.

[1] The ruling that the findings voluntarily made stand on the same footing as findings made under G. L. c. 215, § 11, was correct. Cohen v. Nagle, 190 Mass. 4, 76 N. E. 276,2 L. R. A. (N. S.) 964,5 Ann. Cas. 553;Howe v. Howe, 199 Mass. 598, 601, 85 N. E. 945,127 Am. St. Rep. 516;Taylor v. Jones, 242 Mass. 210, 216, 136 N. E. 382;Boston Safe Deposit & Trust Co. v. Wickham, 254 Mass. 471, 473, 150 N. E. 223.

Eighty-seven contestants appeared in the probate court against the allowance of the will; ‘seven were withdrawn. In each of the remaining cases the proponents of the will filed a motion to strike out the appearance on the ground that the contestant was not an heir at law, and after hearings each motion has been allowed except in the present case.’ It was found by the judge, and it was agreed by counsel in open court, that any evidence introduced in the previous hearings, above referred to, that was material or pertinent to the claim of kinship of the claimant Carlotta Cockburn, should be considered as in evidence in the case at bar. We are of opinion that upon examination of the record this finding was warranted. It would seem that the only evidence so previously introduced was at the hearing upon the claim of Ida M. Blankenburg. The judge stated that:

‘During said hearings the said will of the testatrix was received in evidence, without objection, as the statement of a deceased person.’

At his suggestion to counsel for the proponents, the petition for the probate of the will and the will itself were offered and admitted in evidence, without objection. When the will was so admitted the claimant was represented by counsel, and if it were objected to, that was the time an exception should have been taken to its admission. After the proponents of the will had rested and during the offering of testimony in behalf of the claimant, the question of the admission of the will was discussed by counsel and the judge, and then for the first time the claimant excepted to its admission. The mere fact that a judge believes an exception has been saved and he allows a bill of exceptions is not enough to establish an exception if the record does not show that one was taken at the proper time. To constitute a valid exception it must be seasonably saved, or the rights of the other party cannot be affected. Herrick v. Waitt, 224 Mass. 415, 417, 113 N. E. 205;Riley v. Brusendorff, 226 Mass. 310, 313, 115 N. E. 311;Lockhart v. Ferguson, 243 Mass. 226, 230, 137 N. E. 355. As the record fails to show that a valid exception was taken to the admission of the will in evidence, we need not consider whether upon any ground it was admissible.

[5] The rulings of law requested on page 20 of the record were denied rightly because the will, having been admitted without exception, was entitled to its probative force; these requests in substance were that the will be stricken from the record. Hubbard v. Allyn, 200 Mass. 166, 171, 86 N. E. 356;Commonwealth v. Dascalakis, 246 Mass. 12, 27, 140 N. E. 470.

Request 26 was rightly denied; it related to matters which ought to have been raised when the will was offered in evidence, and could not be raised later. The request must be taken as a whole, and not as a mere request for a limitation of the scope and applicability of the evidence.

The claimant introduced evidence tending to show that John A. Crabtree, brother of the decedent, met the claimant's mother, Annie Leopold, in the East, and afterwards, in 1878 or 1879, in California there was a cermonial marriage between them; that after their marriage they accompanied one Ed Bullock, who had formerly kept a livery stable in San Jose, Cal., from San Francisco or San Jose to Tombstone, Ariz., in 1879; that the claimant, who was born in Tombstone March 19, 1881, was the daughter of Crabtree and Annie Leopold; that Crabtree acquired a domicile in Tombstone, and after the claimant's birth he acknowledged her as his child. The claimant further contends that, even if she were his illegitimate child, she was made legitimate by virtue of a statute of Arizona, and thereby became heir at law and next of kin of the decedent. The claimant, however, introduced evidence of declarations of Crabtree, Annie Leopold and Bullock to show such marriage, and that the claimant was the child of Crabtree and Annie Leopold. She also introduced other evidence tending to show the marriage, her parentage, that Carbtree and Annie Leopold were reputed to be married to each other, and that the claimant was reputed to be their child. The proponents, on the other hand, introduced evidence to show that there never was any ceremonial marriage between Crabtree and Annie Leopold; that he did not meet her in California; that he did not go with her and Bullock to Tombstone, Ariz., in 1879, but that he went there alone from New York City in the fall of 1880; that he did not meet her before that time, and therefore could not have been the claimant's father.

The judge of probate found that there was no satisfactory proof that Crabtree was ever married to Annie Leopold by a ceremony, or that he had contracted a marriage with her at common law; that the claimant had failed to prove that Crabtree was domiciled in Arizona; that there was no credible evidence to warrant a finding that Crabtree and Annie Leopold lived in Tombstone together previous to January, 1881; and he stated:

‘On all the evidence I am not satisfied that Jack arrived in Tombstone before the fall of 1880; and I find that he left Tombstone about the middle of November, 1881; and that he was not there continuously from the fall of 1880 to November, 1881.’

The judge made many other findings and rulings, including the following:

‘I rule that the burden of proof is on the claimant to show by a fair preponderance of the evidence that Jack acknowledged the claimant as his child. And I find and rule that the claimant has not sustained the burden of proof. And on all the evidence I am not satisfied that Jack is the father of the claimant; I am not satisfied that he acknowledged the claimant as his child, and I find the claimant is not the legal heir of John A. Crabtree.’

There was evidence tending to show that Crabtree left Tombstone in November, 1881; that the claimant's mother deserted her when she was a baby, going to Ed Bullock and then running away with one Argyle, whom she afterwards married. She died September 27, 1909, in Seattle, Washington. After the claimant was deserted by her mother, there was evidence that she was cared for by Ed Bullock, with whom Crabtree had been engaged in the livery business in Tombstone; that Bullock, on June 3, 1884, petitioned the probate...