Finer v. Steuer

• Decision Date: 26 May 1926
• Citation: 255 Mass. 611
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: HENRIETTA S. FINER & another v. MOSES H. STEUER.

255 Mass. 611

HENRIETTA S. FINER & another v. MOSES H. STEUER.

Supreme Judicial Court of Massachusetts, Suffolk.

May 26, 1926

December 7, 1925.

Present: RUGG, C.

J., BRALEY, PIERCE WAIT, & SANDERSON, JJ.

Will, Validity execution. Marriage and Divorce, Foreign marriage. Evidence Presumptions and burden of proof, Foreign law, Proof of validity of marriage. Probate Court, Findings by judge Appeal, Parties.

While it is the established rule in this Commonwealth that, if a will is contested, the three subscribing witnesses should be produced if living and within the jurisdiction of the court, it was proper for a judge of probate hearing a contested petition for proof of a will to find that the will was properly executed by a competent person and to admit it to probate although but one of the subscribing witnesses testifies before him, if a second witness, not a resident of the Commonwealth, testifies by deposition, and evidence is introduced to show that the third witness had left his residence in this Commonwealth, had not been heard of by his family for more than two years, and could not be found.

At the hearing above described, it was proper to exclude an affidavit, not a deposition, alleged to have been signed and sworn to by the third attesting witness stating in effect that the will was not signed in his presence and that the other attesting witnesses did not sign in his presence.

Where an alleged testator in his will nominates his wife as executrix and makes provision for her and "all children that may survive me" and his wife dies before him, two persons born to him and his wife have a right under G.L.c. 193, Section 7, to offer the will for probate.

Where a brother of an alleged testator, contending that the testator never married, that his children were illegitimate, and that he was his brother's heir at law, seeks to oppose the proof of a will which disposes of the decedent's property for the benefit of "all children that may survive me," and appeals from a decree of the Probate Court allowing the will, the burden is upon him to prove by a fair preponderance of evidence that he has a right to contest the will as an heir and to appeal from the decree of the Probate Court.

At the hearing of a petition by the alleged children of the testator above described to strike the appearance of the brother from the record as one having no interest in the estate of the decedent, and of a petition of the brother to strike the names of the daughters from the record, it appeared that the alleged marriage of the testator was solemnized in

Austria in accordance with the rites of the Jewish religion, that the testator and the mother of the petitioners had lived together in Austria and in this Commonwealth as man and wife, and that six children had been born of the union. There was in evidence documentary evidence as to the law of Austria. The judge found that he was "not satisfied on the evidence" before him "as to just what was the law of Austria at the time of said marriage ceremony . . . that there was a failure to prove before me any facts showing that the contracting parties to said marriage had failed to comply with the requirements of those laws," and found that the marriage was valid and that the brother was not entitled as a person interested in the estate to contest the proof of the will. On appeal by the brother, with the evidence reported, it was held, that, as an examination of the evidence did not show that the findings by the judge were clearly wrong, the appeal must be dismissed and a decree allowing the will affirmed.

A ceremony of marriage performed in a foreign jurisdiction and followed by cohabitation, is presumed to have been performed according to law, and one attacking it has the burden of proving its invalidity.

PETITION, filed in the Probate Court for the county of Suffolk on August 18, 1921, by Henrietta S. Finer and Elisabeth Steuer for proof of the will of Bernard Steuer and the appointment of the petitioners as administratrices with the will annexed.

The petitioners alleged that they and Celia S. Wasserman and Marion Steuer were daughters of the alleged testator and were his sole next of kin. The will in substance gave all the testator's personal property to his wife and all his real estate to her in trust for the benefit of herself and of "all children that may survive me." The wife died before the testator. Moses H. Steuer, a brother of the decedent, on August 18, 1921, filed an appearance to oppose the petition

"as an heir" and also as a creditor; on September 24, 1921, he presented for filing a petition for the framing of an issue to a jury as to the validity of the will; and on November 17, 1924, a petition that the names of the four alleged daughters of the decedent "be stricken from the records in this case as heirs at law, next of kin, or entitled in any way to any interest in the estate of said Bernard Steuer, and that they be declared not entitled to be heard as interested parties on the issue of the allowance of the alleged will of said Bernard Steuer."

The petitioner Finer on January 28, 1924, filed a petition "that the appearance of said Moses H. Steuer as a party in interest, as aforesaid, be stricken from the record."

The petition for proof of the will first was assigned and came on for hearing before Prest, J., on January 30, 1924, a stenographer having been appointed in accordance with G.L.c. 215, Section 18; and the judge ruled that until Moses H. Steuer showed that he was a party in interest he would not be heard and that he had no standing in court as a creditor to oppose the proof of the will. Formal proof of the will was permitted through testimony of one Heman Fitgang, who testified that the will was signed in his presence by the alleged testator and that he signed in the presence of the alleged testator, but that he could not remember whether the other attesting witnesses signed their names. A deposition of one Louis Aaron, then of Seattle in the State of Washington, was presented. He testified that he drew the will and in detail described its execution in accordance with the required formalities. A return by a constable upon a summons issued for the attendance of the third attesting witness, one Louis Weinfeld, was introduced in evidence by the petitioners, the return stating that he "made diligent search for the within named Louis Weinfelt but could not find him as he is out of the Commonwealth. I therefore return said summons without service thereof." The contestant offered and the judge excluded an affidavit, not a deposition, purporting to have been made by Weinfeld and in effect stating that the alleged testator was not in his presence when he, the testator, signed the alleged will and that he did not sign in the presence of the testator or of the other alleged attesting witnesses. There was other evidence as to Weinfeld which is described in the judge's findings, infra. The first hearing then was adjourned.

The petitions were further heard together in full on November 17, 1924, by Prest, J., a stenographer having again been appointed under G.L.c. 215, Section 18, to take the evidence.

Findings by the judge as to the execution of the will were as follows: "The petitioners presented before me in person one Hyman Fortgang, one of the witnesses of said last will, who gave evidence as to the execution of said will. The petitioners also presented the deposition of one Louis Aaron, who was a witness to the will and who in 1908 was a duly admitted attorney at law practising in Boston, and who is now an attorney at law practising in Seattle, in the State of Washington. The petitioners endeavored to summon as a witness Louis Weinfeld, the third witness to the will. They presented evidence showing that they were unable to obtain service upon him. They did produce the wife and a brother of said Louis Weinfeld, and there was evidence that in July, 1922, said Louis Weinfeld left his residence, then in said Boston, and had not been heard of by his family since that time."

Other material evidence and findings by the judge are described in the opinion. By order of the judge, decrees were entered that the four alleged daughters of the decedent were his legitimate children and that Moses H. Steuer was his brother and not an heir at law or a party in interest; allowing the petition to strike the appearance of Moses H. Steuer from the record; denying the petition of Moses H. Steuer that the names of the four alleged daughters be struck from the record; granting the petition for the allowance of the will and issuance of letters testamentary with the will annexed to the petitioning daughters. Moses H. Steuer appealed from all decrees.

O. Storer, for the respondent. A.K. Cohen, (M.L. Lourie & M.E. Bernkopf with him,) for the petitioners.

SANDERSON, J Bernard Steuer died in Boston, August 5, 1921, leaving a will in which Jennie D. Steuer, therein referred to as his wife, was nominated as executrix. She died about three weeks prior to the date of his death and the will was offered for probate by two of the petitioners who allege that they are daughters of the testator and that they and two other daughters are his heirs at law and next of kin. Moses H. Steuer, a brother of Bernard, entered his appearance as a creditor and heir, and moved that issues be framed to determine the validity of the will. The questions here involved relate to the decrees admitting the will to probate, granting the motion of one of the petitioners asking that the appearance of Moses H. Steuer be stricken from the record, and denying the petition of Moses H. Steuer to strike from the record the names of the petitioners for the probate of the will, and their two sisters, on the ground that they...