French v. Brooke

• Decision Date: 22 April 1922
• Citation: 241 Mass. 315
• Parties: HOLLIS FRENCH, executor, v. GERTRUDE C. BROOKE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

241 Mass. 315

HOLLIS FRENCH, executor, v. GERTRUDE C. BROOKE.

Supreme Judicial Court of Massachusetts, Suffolk.

April 22, 1922

December 5, 1921.

Present: RUGG, C.

J., BRALEY, DE COURCY, CARROLL, & JENNEY, JJ.

Probate Court Jurisdiction: dismissal without prejudice.

The Probate Court has jurisdiction in its discretion to grant a petition by the executor named in a will, assented to by all the beneficiaries named in the will but opposed by the sole next of kin of the alleged testator, that a petition already filed by the executor for probate of the will be dismissed without prejudice and that the petitioner be permitted to withdraw the will from the files of the court, although, after the filing by the next of kin of an appearance opposing the proof of the will, the petitioner had been appointed special administrator, had qualified and as such was holding the personal property of the deceased, and there was pending a petition by the next of kin that the petition for probate he dismissed on the ground that the decedent was not domiciled in this Commonwealth at the time of his death, and a petition for dismissal without prejudice previously filed by the person named as executor in the will and not assented to by the beneficiaries named in the will nor by the next of kin had been denied without prejudice.

PETITION, filed in the Probate Court for the county of Suffolk on June 8, 1921 by one who was named as executor in an alleged will of Sarah Scott Binney which he previously had filed, seeking that a petition for probate of the will, filed by him with the will be dismissed without prejudice to the right of any person interested to petition later for the probate of the will, either as an original or as an ancillary probate thereof, if occasion should arise, that the petitioner be permitted to withdraw the original will from the files of the court and that the Register of Probate be authorized and directed to deliver the original will to the petitioner.

The petition was heard in the Probate Court by Prest, J. Material facts found by him are described in the opinion. He reported the case to this court for determination with the following statement: "If the Probate Court has power to permit the will to be so withdrawn in accordance with the petition of the said Hollis French and against the objection of the heir and next of kin, then in the exercise of my discretion I should grant the prayer of the said petitioner and permit the said will to be so withdrawn without prejudice, as prayed for; but being doubtful of my power in the premises, I report the said petition and the foregoing facts to the Supreme Judicial Court, under the provisions of G.L.c. 215, Section 13, for such action thereon as law and justice may require."

G. R. Nutter, (M.

Israel with him,) for the petitioner.

E. M. Dodd, Jr., for the contestant, Gertrude C.

Brooke.

CARROLL, J. This case comes before us on a report of the judge of probate for Suffolk County under G.L.c. 215, Section 13, on the question whether that court has the power in its discretion to permit the withdrawal of the alleged will of Sarah Scott Binney after a petition for its probate has been filed; the withdrawal being requested in a petition filed by the executor named in the alleged will.

Sarah Scott Binney died in Florence, Italy, April 4, 1919. The instrument in question, purporting to be her last will and testament, was executed in that city "on or about October 15, 1917." Hollis French, named therein as executor, presented a petition for the probate of the will "on or about" May 7, 1919, it being alleged in this petition that the testatrix last dwelt in Boston. Mrs. Binney left bonds and other securities which at the time of her death were within the county of Suffolk, in charge of said French. On November 22, 1920, French was appointed special administrator; he duly qualified, and as such special administrator now holds the bonds and securities.

Gertrude C. Brooke the only heir and next of kin of Sarah Scott Binney, appeared in opposition to the probate of said will, and on November 18, 1919, filed a petition praying that the petition for the probate of the will be dismissed on the ground that the deceased was not a resident of Boston and had no domicil there, but dwelt and had her domicil in Florence, Italy. Thereafter on April 13, 1920, she filed another petition to dismiss the petition for the probate of the will on the same ground already set forth and on the additional ground that "if said will should be admitted to probate in said Kingdom of Italy, it would not be so admitted because said will is executed in the form prescribed by the Italian law of wills but because of a possible interpretation of the conflict of laws which would be inconsistent with the...