Knapp v. Graham

• Decision Date: 29 June 1946
• Citation: 320 Mass. 50,67 N.E.2d 841
• Parties: KNAPP v. GRAHAM et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

320 Mass. 50

67 N.E.2d 841

KNAPP

v.GRAHAM et al.

Supreme Judicial Court of Massachusetts, Suffolk.

June 29, 1946.

Appeal from Probate Court, Suffolk County; Dillon, Judge.

Petition by George J. Knapp against James M. Graham and another, administrators of the estate of Matilda A. Fricker, deceased, for a distribution of the estate of Matilda A. Fricker, deceased. Charles J. Kalinauskas and Dennis E. Sullivan, attorneys designated by the Alien Property Custodian to appear for and represent Wilhelm Frederick Karcher, a citizen and national of Germany, and allegedly a cousin of Matilda A. Fricker, deceased, filed a motion to continue generally the hearing on the petition for distribution and to postpone and defer entry of any decree thereon. From a decree denying the motion of Charles J. Kalinauskas to continue and from a final decree for distribution, Charles J. Kalinauskas appeals, and a motion is made to dismiss the appeals.

Motion to dismiss appeals denied, decree denying motion to continue reversed, final decree for distribution reversed, and case remanded to probate court.C. J. Kalinauskas, of Boston, for William F. Karcher.

J. M. Graham, of Boston, for petitioners.

Before FIELD, C. J., and QUA, RONAN, WILKINS, and SPALDING, JJ.

WILKINS, Justice.

Matilda A. Fricker of Boston died intestate December 21, 1941. On February 3, 1943, administrators of her estate were appointed by the Probate Court of Suffolk County. In a report under date of August 9, 1943, to the alien property custodian the administrators described the persons interested in the estate in the following language: ‘Emma M. Knapp, * * * Sophia E. Scholl, * * * Jamaica Plain, Mass. Both claim to be first cousins of the deceased and it is claimed that Wilhelm Frederick Karcher (address unknown) of Germany is a first cousin. The cousins are apparently the nearest next of kin, and dependent upon who is adjudged to be the nearest next of kin depends their interest in the estate.’ The report stated that ‘the estate will simply be held until it is determined who are the heirs at law and next of kin and * * * thereon will depend * * * the disposition of the property of the deceased.’ On August 23, 1944, George J. Knapp, executor of the will of Emma M. Knapp, filed a petition for distribution in the Probate Court of Suffolk County, alleging the next of kin to be two first cousins, Emma M. Knapp, deceased, and Sophie E. Scholl. On March 23, 1945, Charles J. Kalinauskas, Esquire, and Dennis E. Sullivan, Esquire, attorneys designated ‘by the alien property custodian to appear for and represent Wilhelm Frederick Karcher, a citizen and national of Germany, whose last known address is Karlsruhe, Germany,’ filed a motion ‘to continue generally hearing upon said petition for distribution, and to postpone and defer the entry of any decree thereon, until such time as the facts concerning the relationship of the said Wilhelm Frederick Karcher to the decedent, now unknown, may be learned.’ After quoting from the report of the administrators to the alien property custodian, the motion set forth: ‘Action other than to preserve the status quo should not be taken in a suit against an alien enemy until, by reason of restoration of peace or otherwise, defense may be adequately presented; intercourse between residents of the enemy country and the United States being prohibited by Trading with the Enemy Act, § 3(c), as well as physically impossible.’ The motion also set forth that after receiving the report of the administrators ‘the alien property custodian has been unable to ascertain anything further about the said Wilhelm Frederick Karcher because of the existence of the state of war with Germany; that the State Department of the United States has been requested to, and is doing everything possible to ascertain the necessary facts; that further time is needed to ascertain such facts as are necessary to establish the existence and relationship of the said Wilhelm Frederick Karcher to the intestate; that a just adjudication of the rights and interests of heirs and next of kin cannot be made until such facts are available.’ On the same day the probate judge denied the motion, and heard the petition for distribution. On April 5, 1945, a decree was entered reciting that there was $45,412.87 in the hands of the administrators, ‘that the following persons are entitled thereto in the proportions specified as follows: Estate of Emma M. Knapp (George J. Knapp, Executor) one-half share Sophie E. Scholl and one-half share * * * that said balance be distributed among them, and that an order for such distribution be issued accordingly. * * *’ On April 10, 1945, and April 25, 1945, respectively, appeals from the denial of the motion to continue and from the decree for distribution were filed signed by ‘Charles J. Kalinauskas, attorney designated, appointed and empowered by the alien property custodian to appear for and represent Wilhelm Frederick Karcher, a citizen and national of Germany, whose last known address is Karlsruhe, Germany, and who is supposed to be a cousin of Matilda A. Fricker, late of Boston, in the County of Suffolk, deceased, and interested in the estate of said deceased.’ George J. Knapp, executor, and Sophie E. Scholl filed a motion in this court to dismiss the appeals on the grounds that they are the appeals on Charles J. Kalinauskas; that he is not a party in interest aggrieved; and that even if the appeals be regarded as those of Wilhelm Frederick Karcher, his relationship to the intestate is unknown, and he is not a person in interest aggrieved. The motion to dismiss the appeal from the denial of the motion to continue rests on the further ground that action on the motion was a matter within the discretion of the judge and not subject to appeal.

1. The motion to dismiss the appeals must be denied. In substance they are appeals in the right of Wilhelm Frederick Karcher and not in the right of the attorney designated by the alien property custodian to represent him. The attorney as such could not be a person aggrieved under G.L. (Ter.Ed.) c. 215, § 9. To attribute to him the expression of an intent to appeal personally in a matter in which he had no individual interest rather than to appeal on behalf of the German national he was authorized to represent would be to give too literal an effect to the language of the claims of appeals. See McInnes v. Spillane, 282 Mass. 514, 515-516, 185 N.E. 47. We regard as inapplicable the cases of Boston & Albany R. Co. v. Commonwealth, 157 Mass. 68, 70, 31 N.E. 696, and Madden v. Madden, 279 Mass. 417, 424, 181 N.E. 771.

It is objected that Wilhelm Frederick Karcher is not known to have been alive on December 21, 1941, when Matilda A. Fricker died. No report of material facts was made by the judge. We examine the reported testimony under the applicable rule. Lowell Bar Association v. Loeb, 315 Mass. 176, 178, 52 N.E.2d 27;New England Trust Co. v. Commissioner of Corporations and Taxation, 315 Mass. 639, 643, 644, 53 N.E.2d 1001;Swinford v. Welch, 316 Mass. 112, 117, 54 N.E.2d 932.

The decree for distribution is predicated upon the finding, made without stating the relationship to the intestate, that the estate of Emma M. Knapp and Sophie E. Scholl were equally entitled. This was impliedly a finding that Wilhelm Frederick Karcher either was not related at all to the intestate or was related in a more remote degree than Emma M. Knapp and Sophie E. Scholl. It could not rightly be found that Wilhelm Frederick Karcher was not alive on December 21, 1941. On this record we must assume that Wilhelm Frederick Karcher is one of the two persons named Wilhelm Karcher of Karlsruhe, Germany, one a brother, and the other a nephew, of Fredericka Karcher, late of Boston, deceased, both of whom assented in writing to an administrator's account in her estate allowed February 11, 1937, in the Probate Court of Suffolk County. In view of the contention that Fredericka Karcher was a first cousin of Matilda A. Fricker and in the light of the claim set forth in the report to the alien property custodian that Wilhelm Frederick Karcher also is a first cousin of Matilda A. Fricker, we further must assume that the one with whom we are concerned is the brother, and not the nephew, of Fredericka Karcher. An examination of the original papers in the Probate Court, which are made part of the record by a stipulation of counsel approved by the probate judge, shows that the account covered the period from March 23, 1933, to December 7, 1936, and that the oath of the accountant was taken on December 7, 1936. There is no suggestion that Wilhelm Karcher was ever in this country. We infer that the assents to the account were written after December 7, 1936. As there is no proof of actual death of Wilhelm Karcher or unexplained absence on his part from his domicial or established residence for more than seven years prior to the date of death of Matilda A. Fricker, he is presumed to have been alive on that date. Allen v. Mazurowski, 317 Mass. 218, 220, 221, 57 N.E.2d 544, and cases cited.

It is also contended that the relationship to the intestate of Wilhelm Frederick Karcher does not appear and that he was not a person aggrieved by the decrees. We do not regard as fatal the reference to him as ‘supposed to be a cousin’ rather than as a cousin in the claims of appeal. With respect to the motion to continue enough appears to satisfy the requirements laid down in Finer v. Steuer, 255 Mass. 611, 617, 152 N.E. 220. The contention which he is entitled to make appears on this record to be that his father was the brother of Margaret Karcher, who married Charles A. Fricker. Charles and Margaret, both now deceased, were the parents of Matilda A. Fricker and Julius Fricker. Julius, now deceased, in his will made a bequest to Fredericka, whom he described as ‘my cousin.’ See Bishop v. Russell, 241 Mass. 29, 134 N.E. 233, 19 A.L.R. 1408. As a first cousin the...