Goss v. Donnell

• Decision Date: 29 May 1928
• Parties: GOSS v. DONNELL et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

263 Mass. 521

161 N.E. 896

GOSS

v.DONNELL et al.

Supreme Judicial Court of Massachusetts, Middlesex.

May 29, 1928.

Appeal from Supreme Judicial Court, Middlesex County.

Petition by Willis C. Goss, executor, for the approval and allowance of the last will of Susan P. Harrold. Samuel Donnell and others appeal from a decree allowing the will. After the appeal, Samuel Donnell presented a motion that the Supreme Judicial Court make all material facts involved in the appeal a matter of record. Motion denied, and appeal dismissed.

Donnell, O'Brien & Powell, of Peabody, for appellant.

William T. Atwood and Samuel Maylor, Jr., both of Boston, for the executor.

RUGG, C. J.

This case comes before us on appeal from a decree of the probate court whereby an instrument was approved and allowed as the last will of Susan P. Harrold. That decree was entered on the third day of November, 1927. There was filed with the register of probate by Samuel Donnell on November 7, 1927, a paper entitled:

‘Appeal from Decree Admitting to Probate the Will of Susan P. Harrold, Late of Melrose in the County of Middlesex.’

In this paper are set forth as reasons why Samuel Donnell was aggrieved by said decree allegations to the effect that he was the first cousin and is the only heir at law and next kin of said Susan P. Harrold, hereafter called the decedent; that the petition for the allowance of her alleged will contained no reference to him and named as the heirs at law four of seven second cousins; that no notice of the said petition was sent to said Samuel Donnell; that the petitioner named as executor in said alleged will well knew before filing the petition that said Samuel Donnell was living in Peabody in this commonwealth but deliberately omitted his name from the list of heirs of the decedent; that the decedent was not of sound mind at the time of the execution of the alleged will, as was well known to said petitioner; that there was no contested hearing in the probate court on the allowance of the alleged will, and that only one attesting witness testified, and that said Samuel Donnell desires to contest the allowance of said alleged will. In substance this paper was designed to set out a fraud on the probate court, although the allegations might be more definite. On the ninth of November, 1927, Samuel Donnell filed a formal appeal from the decree allowing the will.

This formal appeal was sufficient under G. L. c. 215, § 9. But it presented no question of law because there was no transcript of the evidence and no report by the judge of the material facts. ‘Nothing is open on such an appeal but the power of the court to make the decree upon any evidence that might been adduced under the petition.’ Hale v. Blanchard, 242 Mass. 262, 264, 136 N. E. 102;Jordan v. Ulmer, 237 Mass. 577, 130 N. E. 71;Commissioner of Banks in re Cosmopolitan Trust Co., 249 Mass. 144, 147, 144 N. E. 73. See Littlejohn v. Littlejohn, 236 Mass. 326, 128 N. E. 425. The paper filed on the seventh of November, 1927, without any hearing thereon and no finding respecting its averments, presents no question of law or fact in this court.

After the appeal was entered in the full court, Samuel Donnell presented a motion supported by affidavit praying that this court in accordance with G. L. c. 231, § 125, ‘cause to be determined and made a matter of record all of the material facts involved in the appeal from the decree of the probate court * * * admitting to probate the will of Susan P. Harrold * * * as set forth in the appellant's appeal and specifications and reasons for said appeal.’ This motion was argued orally at the bar and later on briefs.

The question thus presented relates to probate practice and procedure under our peculiar jurisdiction over the probate of wills and under recent statutes. The general power of a court of probate to revoke its decrees for cause has been fully considered in several leading cases written by justices of this court of special eminence. Waters v. Stickney, 12 Allen, 1, 90 Am. Dec. 122;Gale v. Nickerson, 144 Mass. 415, 11 N. E. 714;Crocker v. Crocker, 198 Mass. 401, 84 N. E. 476. That ground need not be traversed again. It now is settled that a court of probate has power to correct errors in its decrees arising out of fraud, or mistake, or want of jurisdiction, or for any reason adequate in law. Its power in this field is ‘analogous to that of courts of...