Lovell v. Lovell

• Decision Date: 01 June 1931
• Citation: 176 N.E. 210,276 Mass. 10
• Parties: LOVELL v. LOVELL.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

276 Mass. 10

176 N.E. 210

LOVELL

v.LOVELL.

Supreme Judicial Court of Massachusetts, Middlesex.

June 1, 1931.

Appeal and Report from Probate Court, Middlesex County; John C. Leggat, Judge.

Proceedings by Ellen A. Lovell, opposed by John S. Lovell, to set aside a decree for the probate of the last will of petitioner's husband. The probate court granted the petition, and the case comes up for review on defendant's appeal and on report.

Decree reversed.

A. W. Wunderly, of Boston, for plaintiff.

D. Burstein, of Boston, and V. C. Brick, for defendant.

RUGG, C. J.

The petitioner is the widow of a decedent, who left an instrument purporting to be his last will. Previously to the return day of the petition for probate of that instrument as his last will, the widow consulted an attorney, who mailed in the regular way a letter properly addressed to the register of probate, containing her objection to the allowance of the will and his appearance as her attorney. On the same day he also communicated to the attorney for the petitioner for the probate of the will the fact that the widow was taking steps to contest that petition. The letter was never received by the register of probate. In due course a decree was entered allowing the instrument as the last will of the deceased. Thereupon, the widow filed the present petition praying that that decree be set aside and that she be allowed to enter her appearance and to contest the allowance of the instrument as the last will of the deceased. The trial judge found that the petition did everything she could to protect her interest and that she had been deprived of a hearing through no fault of her own but through accident or mistake. This finding is supported by the subsidiary findings. It must be accepted as true.

The probate court had jurisdiction to entertain and deal with the petition notwithstanding the entry of a final decree allowing the instrument as the last will of the deceased. The facts disclosed on the record bring the case at bar within the exception to the general rule that, after a case is determined by the entry of a final decree, the power of the court over it is at an end. That exception is that where a final decree has been entered on default and the defendant has been deprived of an opportunity to make a defense on the merits, by accident or mistake or by the negligence of his attorney, the court has discretionary power to reopen the case in order to give opportunity for the presentation of such defense. Sullivan v. Sullivan, 266 Mass. 228, 165 N. E. 89, and cases cited. That exception, however, is coupled with the limitation that the discretion of the court ought not to be exercised unless it appears in some way that the defense is meritorious or substantial. Day v. Allaire, 31 N. J. Eq. 303, 315; Millspaugh v. McBride, 7 Paige (N. Y.) 509, 512, 34 Am. Dec. 360;Herbert v. Rowles, 30 Md. 271, 278, 279;Bailey v. Merchants' Ins. Co., 110 Me. 348, 352, 353,86 N. E. 328. This limitation applies to proceedings for vacating judgments under G. L. c. 250, §§ 14-19. A petition to that end cannot rightly be granted unless it is made...