Knapp v. Graham
| Decision Date | 29 June 1946 |
| Citation | 320 Mass. 50,67 N.E.2d 841 |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
| Parties | GEORGE J. KNAPP, executor, v. JAMES M. GRAHAM & another, administrators. |
June 24, 1946.
Present: FIELD, C.
J., QUA, RONAN WILKINS, & SPALDING, JJ.
Probate Court Appeal, Parties, Continuance, Judicial discretion, Alien. Death. Executor and Administrator, Distribution, Alien enemy. Descent and Distribution. Evidence, Judicial notice. Alien Property Custodian. War.
A probate appeal signed by a certain attorney "designated, appointed and empowered by the alien property custodian to appear for and represent" a named enemy national was in the right of the enemy national and not that of the attorney personally.
One shown to have been alive less than seven years before a certain date was in the absence of proof of his death, presumed to have been alive on that date.
Evidence that one was a cousin and next of kin of an intestate was sufficient to show that he was a person aggrieved by and entitled to appeal from a decree of the Probate Court denying his motion to continue a hearing on a petition for distribution and from a decree ordering distribution of the estate to others although the appeals referred to the appellant as "supposed to be a cousin" of the intestate.
An exercise of discretion by a judge of probate in denying a motion for a continuance of a hearing on a petition was reviewable by this court on appeal.
The caption of a case presented to this court upon appeals by an enemy national, claiming an interest in the estate of an intestate as a next of kin and represented by an attorney duly designated by the alien property custodian, from the denial by the Probate Court of a motion made on behalf of the enemy national for a continuance of a hearing upon a petition by a next of kin other than the enemy national for distribution of the estate and from a decree for distribution to the petitioner and one other next of kin to the exclusion of the enemy national, should have been, "[The petitioner by name] vs. [the administrator of the estate as such by name]."
This court took judicial notice of the facts that in March, 1945, a state of war existed between the United States and Germany; that hostilities did not cease until May, 1945; and that at least until the cessation of hostilities there had been no time since the death of an intestate here late in December, 1941 when there was a reasonable opportunity for the proper ascertainment or presentation of an interest claimed in the intestate's estate by an enemy national resident in Germany.
With respect to the estate of an intestate who died here in December, 1941, a denial by the Probate Court in March, 1945, of a motion, by attorneys designated by the alien property custodian to represent an enemy national resident in Germany, to continue a hearing on a petition for distribution until the facts as to the enemy national's kinship to the intestate could be ascertained was an abuse of discretion and error in that it unfairly deprived the enemy national of his rights and disregarded the powers vested in the alien property custodian under paramount war time Federal statutes.
PETITION for distribution, filed in the Probate Court for the county of Suffolk on August 23, 1944.
The proceedings described in the opinion were before Dillon, J.
C. J. Kalinauskas, for Wilhelm F.
Karcher, claiming as next of kin.
J. M. Graham, for the petitioner and others, submitted a brief.
WILKINS, J. 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: 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, Section 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 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 of 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, Section 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. We regard as inapplicable the cases of Boston & Albany Railroad v. Commonwealth, 157 Mass. 68 , 70, and Madden v. Madden, 279 Mass. 417 , 424.
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. New England Trust Co. v. Commissioner of Corporations & Taxation, 315 Mass. 639, 643-644. Swinford v. Welch, 316 Mass. 112 , 117.
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...
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