Green v. Hogan

• Decision Date: 03 April 1891
• Citation: Green v. Hogan, 153 Mass. 462, 27 N.E. 413 (Mass. 1891)
• Parties: GREEN v. HOGAN et al.
• Court: Supreme Judicial Court of Massachusetts

153 Mass. 462

27 N.E. 413

GREEN v. HOGAN et al.

Supreme Judicial Court of Massachusetts, Hampden.

April 3, 1891

COUNSEL

Robinson & Robinson, for executor.

J.B Carroll and Parsons & Crossley, for defendants.

OPINION

FIELD C.J.

This is a proceeding in equity for the construction of a will. Swasey v. Jaques, 144 Mass. 135, 10 N.E. 758. The petition was filed in the probate court, and an appeal taken from the decree of that court to the supreme judicial court where the case was heard by a single justice and reported to the full court. The rules established for regulating the practice and conducting the business of probate courts pursuant to Gen.St. c. 117, § 19, now Pub.St. c. 156, § 22 apparently do not cover proceedings in equity. See Baker v. Blood, 128 Mass. 543. We think, however, that until rules are established for such proceedings in the probate courts the pleadings and practice ought, as nearly as is practicable, to conform substantially to the equity procedure in the other courts of the commonwealth. The persons interested, who ought to be made parties respondent, should be described by name and residence, and a citation or subpoena should be issued addressed to them, or containing their names, which should be served upon them if they are within the commonwealth and personal service can be made. They should appear and answer, or the bill or petition should be taken for confessed against them, and a decree should be entered according to the forms of decrees in equity. In the present case there are no pleadings except the petition, and no decree except the final decree of the probate court, but all the persons, who by the petition appear to be interested in the question presented, apparently resided within the commonwealth, except Daniel Hogan, and we infer that the citation was served on all but Hogan personally, who resided in New Jersey, and was also published in a newspaper designated in the order of the court. All the persons interested have appealed from the decree of the probate court, and we infer that they all appeared before the probate court, and before the justice of this court who heard and reported the case, and they all have by counsel argued the case in this court. Although all the forms usual in equity proceedings have not been followed, yet we think it appears that everything essential has been done to bring the question presented by the petition properly before this court. It appears by the decree of the probate court that the question of the validity and construction o the third clause of the will was waived probably because there was no doubt as to its validity and construction, and that the only question is upon the validity of the fourth or residuary clause. In Bates v. Bates, 134 Mass. 110, it is said that "it has been repeatedly held that a bequest to provide a fund for the permanent care of a private tomb or burial place could not be treated as a public charity, and thus made perpetual, and that such a bequest would be void," and that Pub.St. c. 82, §§ 8, 17, had no application to the case there presented. Pub.St. c. 82, §§ 6-8, relate to cemetery corporations "created by special charter or organized under the general laws," and section 17, Id., relates to "a lot in a public burial place of a city or town." See St.1885, c. 302; St.1890, c. 264, § 4.

From the facts reported in the present case it appears that Michael Hogan, the testator, owned rights in a burial lot in St. Mary's Catholic Cemetery, in Westfield, in this commonwealth, and that the fee of the land was in the Roman Catholic bishop of the diocese, and that there was established in Westfield a Roman Catholic Church, of which Hogan was a member, and that "the resident priest subject to the bishop, holds and exercises control over the church and cemetery." It is plain from the report that this cemetery is not a public burial place of the town of Westfield, or a cemetery belonging to a corporation. It does not appear when the land in this cemetery was first used and appropriated for the purpose of the burial of the dead, or that permission to use it for this purpose has been obtained from the town of Westfield, but we shall not assume that the land was unlawfully used for this purpose in the absence of any contention of this kind by any of the parties. See Pub.St. c. 82, § 18; Gen.St. c. 28, § 5; St.1855, c. 257, § 3; Meagher v. Driscoll, 99 Mass. 281. It is impossible precisely to determine from the report what rights of burial Michael Hogan acquired in the lot to which he is declared entitled by the written instrument delivered to him, or whether, on his death, any rights of burial descended to his heirs, but it is clear that no rights of burial were granted to the public, or to any indefinite portion of...