Gale v. Nickerson

• Court: Supreme Judicial Court of Massachusetts
• Writing for the Court: MORTON, C.J.
• Citation: Gale v. Nickerson, 144 Mass. 415, 11 N.E. 714 (Mass. 1887)
• Decision Date: 09 May 1887
• Parties: GALE and others v. NICKERSON and another.

144 Mass. 415

11 N.E. 714

GALE and others v. NICKERSON and another.

Supreme Judicial Court of Massachusetts, Barnstable.

May 9, 1887

COUNSEL

H.D. Hadlock, for appellants.

The question of jurisdiction was raised on the respondents' motion to dismiss, and the decree of the probate court, which has been affirmed by the supreme court of probate, denied the jurisdiction of the probate court on the allegations contained in the petition. The allegations contained in the petition must, for the purposes of this hearing, be taken as true, and the motion upon which the court based its decree be treated as admitting the facts stated in the petition. The answer was not a part of the case at the hearings heretofore had, and therefore I submit it is not entitled to consideration in this court. By the appeal of August 23 1869, which is made a part of the petition, the question of forgery was not before the court, and has never been passed upon, and the authorities limiting the time for taking an appeal have no application to the question presented by the petition. I am aware of the rule of law stated in the case of Kent v. Dunham, 14 Gray, 279, and in Dunham v Dunham, 16 Gray, 577, and respectfully submit that those cases have no application to the case at bar, at this stage of the proceedings. None of the questions raised by the appeal were passed upon by the court. The affirmance was based upon an agreement, and not upon a hearing. The order of the court simply remanded the case to the probate court for further proceedings in that court. This order was predicated upon the assumption that the instrument which purported to be the will of John Nickerson was a valid will, and I presume that it will not be contended that even a decree of court can convert a forgery into a valid instrument; and, therefore, if it be conceded that the court found that the reasons stated in the appeal were not sustained, non sequitur that the reason now stated for vacating the decree of the probate court was passed upon. I believe it to be well-settled law that the decree of a court never extends beyond the questions presented for its adjudication. The only questions before the court were contained in the reasons of appeal. But press the act of the court in the first appeal to its fullest tension, and it only amounts to the withdrawal of the appeal, and leaves the probate court in the position that a withdrawal of an appeal before entry would have placed it. The withdrawal of the appeal did not withdraw the question now presented, because that question was not stated in the reasons of appeal, and was not before the court.

If the will was forged, as alleged in the petition, then no decree of court can make it valid; for, as Lord Coke says "Fraud avoids all judicial acts, ecclesiastical or temporal." Now, assuming the allegation in the petition to be true, and that the will was a forgery, can the decree of approval be vacated, and, if it can be vacated, what court has original jurisdiction? I contend that it is well settled law that when a decree of a court has been obtained by fraud that the court in which such decree has been obtained has full power to vacate it. Holmes v. Holmes, 63 Me. 422; Adams v. Adams, 51 N.H. 388; Edson v. Edson, 108 Mass. 590; Allen v. Maclellan, 12 Pa.St. 328; Prudham v. Phillips, stated in Meadow v. Duchess of Kingston, 2 Amb. 763. The power, both of courts of equity and law, over their own processes, to prevent abuse, oppression, and injustice, are inherent, and equally extensive and efficient, as is also the power to protect their own jurisdiction. Krippendorff v. Hyde, 110 U.S. 276, 4 S.Ct. 27; Johnson v. Waters, 111 U.S. 640, 4 S.Ct. 619.

The probate courts of the commonwealth, in their jurisdiction, include wills of real estate as well as personal property. Laughton v. Atkins, 1 Pick. 549. Now, with this extended jurisdiction, can it be urged that probate courts are powerless to vacate decrees obtained by imposition and fraud, and that if a forged will be admitted to probate, and allowed, a decree that allowed that forged will cannot be vacated? And yet this must be the result, if the courts cannot vacate decrees obtained by imposition and fraud; as the decrees of probate courts, in matters of probate, within the authority conferred upon them by law, are conclusive upon the courts of common law, and cannot be reversed by writ of error or certiorari. Dublen v. Chadbourn, 16 Mass. 441; Peters v. Peters, 8 Cush. 529. Nor can equity grant relief, even in cases of fraud. Gaines v. Chew, 2 How. 641, 645, 646; Sever v. Russell, 4 Cush. 513. It follows, from the decisions in this commonwealth that the power to correct decrees in the probate courts obtained by fraud must be inherent in the court. See Waters v. Stickney, 12 Allen, 1; Harrison v. Mitchell, Fitzg. 303; and Nichol v. Askew, 2 Moore, P.C. 92.

All the text-books relied on as guides in matters of practice of this kind state that probate of a will, either in common or solemn form, may be revoked on evidence of fraud in the proof, or of a later will. Went. Off. Ex'r, 48; Toll. Ex'rs, 73, 74; 1 Williams, Ex'rs, 299-508; Waters v. Stickney, ubi supra, 7-10. "The authority of courts of probate to correct errors in their decrees, on administrator's accounts, even when in terms final, upon clear proof of fraud or mistake in a point not once actually presented and passed upon, has been repeatedly sustained in this court, and by the highest courts of Vermont and New York, and is now affirmed in this state by statute. Field v. Hitchcock, 14 Pick. 405; Boynton v. Dyer, 18 Pick. 5; Adams v. Adams, 21 Vt. 166, 167, and cases; Pew v. Hastings, 1 Barb.Ch. 452; Sipperly v. Baucus, 24 N.Y. 46. A fortiori, in cases where a will, the basis of the administration, is a forgery, should this authority pertain. That a probate court has authority to vacate its decrees, when obtained by fraud, seems to be well settled in this state. Blake v. Ward, 137 Mass. 96; Stetson v. Bass, 9 Pick. 29; Waters v. Stickney, 12 Allen, 1; Crump v. Morgan, 3 Ired.Eq. 92; Bowen v. Johnson, 5 R.I. 119, 120; Muir v. Trustees of Orphan House, 3 Barb.Ch. 477. The power of courts to revoke the probate of a will for cause is well settled. Gaines v. Hennen, 24 How. 567; Clagett v. Hawkins, 11 Md. 381; Schultz v. Schultz, 10 Grat. 358; County Court of Mecklenburg v. Bissell, 2 Jones, 389; Lawrence's Will, 7 N.J.Eq. 215; Roy v. Segrist, 19 Ala. 810. The power we contend for is a necessary power, and, without this power in the court, a forged will would be as effectual in transferring estates, if once approved, as a valid one. See Waters v. Stickney, 12 Allen, 16.

I now submit that the probate court for Barnstable county, in the commonwealth of Massachusetts, is the only court possessed of original jurisdiction over the subject-matter set forth in the petition which is now before this court on appeal. The supreme court of probate has only appellate jurisdiction, and can only pass on such matters as are presented on appeal, and all orders and decrees must be carried into effect in the probate court. Therefore it follows that the jurisdiction in all probate matters in the first instance vests in the probate court. The supreme judicial court, after it has remanded a case to the probate court for further proceedings, has no control over the case, and cannot take jurisdiction, unless the case be again brought up on appeal. Peters v. Peters, 8 Cush. 542, 543. The supreme court, as a supreme court of probate, has no original probate jurisdiction, and, in the exercise of its appellate jurisdiction from the probate court, can only make such decrees as that court should have made. Grinnell v. Baxter, 17 Pick. 383; Waters v. Stickney, 12 Allen, 16; Prosser v. Wagner, 1 C.B. (N.S.) 295. The decree that the petitioners seek to have annulled is not the decree of the supreme court of probate, but the decree of the probate court. See 1 Sup.Gen.St. 1860-1872, c. 189, p. 31. I most respectfully submit that the cases cited in Cleveland v. Quilty, 128 Mass. 578, would have had more direct application prior to act of 1860. The question now raised by the petitioners was not pending in the supreme court at the time it entered its decree of affirmance. This is a new question of fact, presented after the decree. The position assumed by the learned judge in court, in the opinion in this case, I respectfully contend, cannot be sustained. The case was remanded to the probate court for further proceedings in that court; and, after the case had been remanded, a new objection was offered in the probate court, which, if true in fact, would preclude all further proceedings in the premises under the will. This objection is addressed to the court where the case is pending,--the court of original jurisdiction. I submit that the only court that can have cognizance of the objection is the court where the case is pending at the time the objection is made. Peters v. Peters, 8 Cush. 542, 543. Now, I contend that any question of fact tending to show that further proceedings should not be had,--because the will is a forged instrument,--that arose after the case had been remanded, was in the first instance within the jurisdiction of the probate court, and that it was the duty of the probate court to determine such question of fact. Wade v. Lobdell, 4 Cush. 510. The only court, therefore, that can take jurisdiction of the petition, for the purpose of determining the truth of the facts stated in the petition, is the probate court, as no other court can exercise its functions, and therefore it follows that the petition was properly presented in the probate court.

R.M. Morse, Jr., and W.F. Griffin, for respondents.

The petition was rightly dismissed. It was, in effect, a ...