McEndy v. McEndy

• Decision Date: 20 December 1945
• Citation: 318 Mass. 775,64 N.E.2d 435
• Parties: McENDY et al. v. McENDY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

318 Mass. 775

64 N.E.2d 435

McENDY et al.

v.McENDY.

Supreme Judicial Court of Massachusetts, Worcester.

Dec. 20, 1945.

Petition by Robert J. McEndy and another against Edmund McEndy, executor, to revoke a decree allowing a will. Decree vacated, and respondent appeals.

Reversed.Appeal from Probate Court, Worcester County; Atwood, Judge.

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

No argument nor brief for petitioners.

A. E. Seagrave, of Fall River, for respondent.

WILKINS, Justice.

The will of Kate Casavant was allowed on the return day by a decree dated January 9, 1945, after service of the citation by publication and mailing, upon a petition listing various nephews and nieces, including Robert McEndy and John D. Wall, as heirs at law and next of kin. The present petition to revoke the decree, filed by McEndy and Wall, alleged unsoundness of mind and undue influence, and set forth that the petitioners had ‘failed through inadvertence and mistake to appear and object.’ On April 10, 1945, the judge after hearing vacated the decree. The respondent executor appealed.

The judge made a report of the following material facts found by him. G.L. (Ter.Ed.) c. 215, § 11. The list of heirs and next of kin in the petition for probate was incomplete because three children of a deceased nephew were omitted. One of them was Francis McEndy, a member of the armed forces stationed in Italy. The affidavit as to military service stated that no person interested was in such service. The proponent's error in the petition and affidavit was not found to have been intentional. The foregoing was ‘the principal basis of the decree vacating the decree for probate.’ The heirs named in the petition for probate did nothing to learn the contents of the will before the decree of allowance, but later, learning them, they desired to contest.

The decree allowing the will could not properly have been vacated on behalf of the petitioners upon the allegations of the petition and upon the facts found. Bonnemort v. Gill, 167 Mass. 338, 340, 45 N.E. 768.Donnell v. Goss, 269 Mass. 214, 217, 169 N.E. 150.McLaughlin v. Feerick, 276 Mass. 180, 183, 176 N.E. 779. See Waitt v. Harvey, 312 Mass. 384, 396, 45 N.E.2d 1;New England Trust Co. v. Paine, 317 Mass. 542, 547, 59 N.E.2d 263, 158 A.L.R. 262. The one absent in the military service being unrepresented by counsel and, so far as appears, having no attorney appointed to act for him, the question is whether the court of its own motion could vacate the decree. The Soldiers' and Sailors' Civil Relief Act of 1940, Act of October 17, 1940, c. 888, § 201, 54 U.S.Stat. 1181, 50 U.S.C.A.Appendix § 521, reads: ‘At any stage thereof any action or proceeding in any court in which a person in military service is involved, either as plaintiff or defendant, during the period of such service or within sixty days...