Marcus v. Pearce Woolen Mills, Inc.

Citation353 Mass. 483,233 N.E.2d 29
PartiesRose N. MARCUS v. PEARCE WOOLEN MILLS, INC.
Decision Date04 January 1968
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

John F. Keenan, Worcester, for Pearce Woolen Mills, Inc.

James J. Phillips, Worcester, for Rose N. Marcus.

Before WILKINS, C.J., and WHITTEMORE, CUTTER, SPIEGEL and REARDON, JJ.

SPIEGEL, Justice.

This is an appeal from a decree of the Probate Court vacating the appearance of an attorney for Pearce Woolen Mills, Inc. (Pearce), an attaching creditor of one Richard S. Marcus, a son and heir at law of the testator.

Maurice Marcus died on August 11, 1966. His heirs at law were his widow, a son, a daughter and two grandchildren. The widow filed a petition for probate of the testator's will, under the terms of which she was the sole beneficiary. The testator died seized of real estate in Worcester County. On October 6, 1966, Pearce made an attachment 'of the real estate of Richard S. Marcus standing of record in the name of Maurice Marcus' in the Worcester District registry of deeds. On October 7, 1966, Pearce filed an appearance in opposition to the allowance of the will. On October 24, 1966, the widow filed a motion to vacate this appearance on the grounds 'that the appearance of Pearce' 'was not seasonably filed' and that Pearce 'has no interest in the Estate of * * * (the testator).' The court allowed the motion to vacate on November 1, 1966.

The appellee contends that '(t)he record does not present a case ripe for consideration by this Court.' We do not agree. Although her argument on this issue seems to be interspersed with other points, we gather that her principal contention is 'that there has been no final decree of any kind entered in the Probate Court.' As far as Pearce is concerned the allowance of the motion was decisive and final. Therefore, we hold that the case is properly before us. See Bressler v. Averbuck, 322 Mass. 139, 143, 76 N.E.2d 146, and cases cited; Nantucket Exp. Lines, Inc. v. Woods Hole, Martha's Vineyard & Nantucket S.S. Authy., 350 Mass. 173, 174, 213 N.E.2d 862. See also Finer v. Steuer, 255 Mass. 611, 152 N.E. 220; Edwards v. Cockburn, 257 Mass. 153, 153 N.E. 796; Phillips v. Phillips, 262 Mass. 343, 160 N.E. 7.

Although the appellee in her brief raises '(t)he question of the timeliness of the appearance' of the appellant we do not treat with this argument because the record states that 'The timeliness of the appearance is not an issue in this appeal.' In any event, we note that the appearance was entered prior to any action by the court.

The only other question before us is whether Pearce has a sufficient interest in the estate to give it standing to contest the will. The legal principles governing the standing of creditors of an heir to contest a will have been long settled in this Commonwealth. A mere creditor is said to have too remote and contingent an interest to be an aggrieved party. However, a creditor who has attached property which would descend to the debtor but for the allowance of the will stands on a different footing. The leading case on the subject is Smith v. Bradstreet, 16 Pick. 264. In a factually similar situation, Chief Justice Shaw observed that the creditor's 'title depends upon proof of the will. An attachment constitutes a lien, a real interest in the land, which may be followed up to a perfect title. If the will is proved, it defeats this title; if rejected, it establishes it. The trial of this fact, in the probate court, is conclusive upon this question, and the appellant has no other time, place, or forum to try it in. If this will is established * * * (without the appearance of the appellant) when, as he offers and professes that he is able to prove, that it is invalid and void, we think he is aggrieved.' 16 Pick. 264, 265--266. The difference in the treatment afforded and attaching creditor and a creditor who has not made an attachment is due to the vested interest of the attaching creditor in the property of the estate. 'The grounds of this rule are, that a party cannot be said to be...

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10 cases
  • Borman v. Borman
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • 16 Agosto 1979
    ...action; the allowance of a motion to vacate the appearance of contestants in probate matters (Marcus v. Pearce Woolen Mills, Inc., 353 Mass. 483, 484-485, 233 N.E.2d 29 (1968)); the appointment of a guardian ad litem in estate settlement proceedings (Lynde v. Vose, 326 Mass. 621, 622, 96 N.......
  • Maddocks v. Ricker
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • 15 Diciembre 1988
    ...a matter conclusively as to certain parties has been treated as appealable forthwith. See, e.g., Marcus v. Pearce Woolen Mills, Inc., 353 Mass. 483, 484-485, 233 N.E.2d 29 (1968) (order vacating appearance of contestant in will contest); Vincent v. Plecker, supra 319 Mass. at 565, 67 N.E.2d......
  • DiLuzio v. United Elec., Radio and Mach. Workers of America, Local 274
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • 16 Febrero 1984
    ...in our rule of present execution. Borman v. Borman, 378 Mass. 775, 780, 393 N.E.2d 847 (1979). See Marcus v. Pearce Woolen Mills, Inc., 353 Mass. 483, 233 N.E.2d 29 (1968); Lynde v. Vose, 326 Mass. 621, 96 N.E.2d 172 (1951). Applying this rule in Borman, we agreed to review directly a pretr......
  • Kirk v. MacDonald
    • United States
    • Appeals Court of Massachusetts
    • 4 Octubre 1985
    ...129 Vt. 490, 494, 282 A.2d 831 (1971); 1 Whitsie, Mortgage Foreclosure § 377, at 519 (4th ed. 1927). Cf. Marcus v. Pearce Woolen Mills, Inc., 353 Mass. 483, 485, 233 N.E.2d 29 (1968). Contrast the cases cited by the judge below, which are instances where the parties had no interest in the p......
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