In re Appeal of Cook

• Decision Date: 24 October 1922
• Citation: 243 Mass. 149,137 N.E. 299
• Parties: Appeal of COOK.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

243 Mass. 149

137 N.E. 299

Appeal of COOK.

Supreme Judicial Court of Massachusetts, Bristol.

Oct. 23, 1922.

Oct. 24, 1922.

Appeal from Probate Court, Bristol County.

Petition by Otis S. Cook for the allowance of the will and codicil of Sarah E. Seabury, deceased. From an order framing issues for jury trial on motion of Bertha A. C. Mosher, the petitioner appeals. Affirmed.

The petitioner was a nephew and the contestant the daughter of a deceased nephew of the testatrix. The will named the petitioner as executor without surety and gave the residuary estate to him and three nieces equally. The contestant was given only a comparatively small legacy. After hearing the statements of counsel, the court ordered the following issues tried by jury:

First issue: Was the instrument now propounded for probate as the last will of Sarah E. Seabury, late of New Bedford in said county of Bristol, deceased, procured to be made in whole or in part by the fraud or undue influence of Otis Seabury Cook and, if in part, what part?

Second issue: Was the instrument now propounded for probate as a codicil to the alleged will of said Sarah E. Seabury procured to be made in whole or in part by the fraud or undue influence of Otis Seabury Cook, and if in part, what part?Charles F. Choate, Jr., and Frank W. Knowlton, both of Boston, for appellant.

John W. Cummings, of Fall River, Joseph T. Kenney, of New Bedford, and John B. Cummings, of Pittsfield, for contestant Mosher.

RUGG, C. J.

This is a petition for the allowance of the will and codicil of Sarah E. Seabury, late of New Bedford. One of her heirs at law appeared in opposition to the probate of the will and filed a motion for the framing of issues to be tried by a jury. That motion was heard before the judge of probate upon statements by counsel for the contestant as to evidence which he expected to be able to offer upon the trial of issues if framed. These statements were taken stenographically and a decree was entered framing two issues. The executor's appeal brings the case before us.

1. The case is rightly before us on a stenographic report of the statement of counsel for contestant as to the evidence within his knowledge and control. To receive such statement was in accordance with proper practice in a case like the present. It may rightly be reported in lieu of evidence under G. L. c. 215, §§ 9-18; Cummins v. McCawley, 241 Mass. 427, 135 N. E. 479. See Dwyer v. Dwyer, 239 Mass. 188, 131 N. E. 328.

[3] 2. A probate appeal of this nature, where the evidence or statements of counsel received and accepted in lieu of evidence are reported, stands before this court precisely as does an appeal from a decree entered by a judge in equity with full report of the evidence. Such an appeal brings before this court questions of fact as well as of law. It is the duty of this court to examine the evidence, to reach its own conclusion as to the facts, and to decide the case according to its own judgment, giving due weight to the finding of the judge. But a finding made by him after a hearing in which witnesses have testified orally before him will not be reversed unless plainly wrong. Lindsey v. Bird, 193 Mass. 200, 79 N. E. 263;Hayes v. Penn Mutual Life Ins. Co., 222 Mass. 382, 385, 111 N. E. 168;Martell v. Dorey, 235 Mass. 35, 40, 126 N. E. 354. This rule rests upon the ground that observation of a witness testifying in person before him enables a presiding magistrate to weigh the value of evidence better than can an appellant tribunal knowing only what is revealed by the printed transcript of testimony. An appeal from a decree based on statements of counsel of what he expects to prove is nearly on the same footing as an appeal in equity where the evidence is documentary, and the appellate court stands where the judge who heard the case stood in respect to the inferences to be drawn. Harvey-Watts Co. v. Worcester Umbrella Co., 193 Mass. 138, 78 N. E. 886;Glover v. Waltham Laundry Co., 235 Mass. 330, 333, 127 N. E. 420. Manifestly the statement of counsel does not stand on the same footing as oral testimony by witnesses, because it does not afford opportunity to test credibility of witnesses by seeing face to face their manner of giving testimony. Nevertheless, this court ordinarily will not reverse an order of a probate judge respecting the framing of issues for a jury where supported by statements of expected proof.

3. The executor requested the probate judge at the hearing to take the testimony of the witnesses and not to accept statements of counsel for contestant respecting what he expected to prove. A judge of probate is not required to receive testimony in a formal way in a case like the present. He may rightly rely upon positive statements of reputable counsel concerning the nature of evidence within his knowledge; but in cases of doubt he may require the examination of witnesses. The permissible practice is set out at length in Fuller v. Sylvia, 240 Mass. 49, 53, 133 N. E. 384, and need not be repeated.

4. The facts in the statement of contestant's counsel included these: The testatrix was a spinster more than eighty years old, who, although of sound mind, had the weaknesses and infirmities naturally incident to one of her age. She had lived for many years upon terms of exceeding intimacy with an unmarried sister, by whose death in 1914 she was affected. Her then remaining immediate relatives were another sister, Mrs. Cook, and her children,among whom were the petitioner and Clarence A. Cook. The latter was the intimate and...