Moffatt v. Martell (In re Martell's Estate)

• Decision Date: 26 June 1931
• Citation: 177 N.E. 102,276 Mass. 174
• Parties: In re MARTELL'S ESTATE. MOFFATT et al. v. MARTELL (two cases). MARTELL v. MOFFATT et al. (two cases).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

276 Mass. 174

177 N.E. 102

In re MARTELL'S ESTATE.

MOFFATT et al.

v.MARTELL (two cases).

MARTELL

v.MOFFATT et al. (two cases).

Supreme Judicial Court of Massachusetts, Middlesex.

June 26, 1931.

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

Suit by David W. Moffatt, administrator, and others against Edward A. Martell in regard to the estate of Mary Ann Martell, and suit by David W. Moffatt, administrator, and others against Edward A. Martell in respect to the estate of Judson Gordon Martell, in which appeals were taken from allowance of motion for dismissal of appeal to the full court from final decrees in equity entered in probate court, and petition by Edward A. Martell against David W. Moffatt, administrator, and others in respect to the estate of Mary Ann Martell, and by Edward A. Martell against David W. Moffatt, administrator, and others in respect to the estate of Judson Gordon Martell, for leave to enter appeal, and for general relief.

Orders dismissing appeals affirmed, petitions denied.R. J. Lane, of Boston (D. F. Collins, of Boston, on the brief), for appellants.

J. T. Pugh, of Boston, for appellees.

RUGG, C. J.

The first two of these cases are appeals from the allowance of motions for dismissal of appeals to the full court from final decrees in equity entered in a probate court. The material facts are these: Edward A. Martell, hereafter called the petitioner, brought, in respect to each of two estates, a petition in equity. Decrees were entered on December 10, 1930, dismissing each petition. The petitioner, on December 12, 1930, filed a claim of appeal from each decree and a request for a report of the material facts as found by the trial judge. Both were seasonably filed. G. L. c. 215, §§ 9, 11. No report of material facts as required by said section 11 has been filed. The petitioner was the party on whom rested the obligation to cause all necessary papers to be prepared for presentation of the cases to the full court, and he did not, within ten days after his appeal was filed, give any order in writing to the register of probate for the preparation of such papers. It does not appear that the evidence, if any, upon which the original decree was based, was taken stenographically so that it might be reported on appeal, nor that the decree was entered as a ruling of law. Since the cases now come before us on report of material facts found by the judge with respect to the motions to dismiss, it is to be assumed that no such factors exist. Motions to dismiss the appeals were filed on January 27, 1931, and, after hearing, allowed on February 2, 1931. The ground alleged in each motion was failure of the appealing party seasonably to give order in writing to the register of probate for the preparation of the necessary papers and copies in conformity to the requirements of St. 1929, c. 265, § 1, amending G. L. c. 231, § 135. The words of the statute here material are: ‘In order to carry any question of law’ from any probate ‘court to the full court of the supreme judicial court upon appeal * * * the party having the obligation to cause the necessary papers * * * to be prepared shall give to the * * * register * * * within ten days after the appeal * * * an order in writing for the preparation of such papers and copies. * * * As soon as may be after receiving such written order’ the register ‘shall make an estimate of the expense of the necessary transcripts * * * and of the preparation and transmission of the necessary papers and copies * * * and shall give such party notice in writing of the amount of such estimate. Such party, within twenty days after the date of such notice * * * shall pay * * * the amount of such estimate. * * *’ The time for giving the order in writing for preparation of the papers is thus fixed by imperative statutory words as ‘within ten days after the appeal.’ Niosi v. Leveroni (Mass.) 174 N. E. 228;McCarty v. Boyden (Mass.) 175 N. E. 292. There can be no doubt about the date of an appeal. It is established by the record of the court. G. L. c. 215, § 15. Appeal was taken in each of the cases at bar on December 12, 1930. There was no compliance with the statutory mandate already quoted, because no order in writing for the preparation of the necessary papers and copies was given to the register within ten days after the appeal. Although the judge did not within that period of ten days comply with the requirement of G. L. c. 215, § 11, by filing report of material facts, that failure did not extinguish or adversely affect the substantial rights and obligations of the appealing party. The burden resting on the register by the statutory words already quoted is to give to the appealing party the necessary estimates ‘as soon as may be after receiving’ from him the written order. No specific time in days is fixed within which the register must furnish the estimate. Manifestly it would have been impossiblefor him to make accurate estimates in the cases at bar until the trial judge had complied with the requirement that he file a report of the material facts found by him. No question arises as to knowledge by the register of the request for such report, because it is a definite fact in the cases at bar that it was made. As matter of precaution and to avoid possibility of misunderstanding, copy of such request with date and affidavit of its having been given ought seasonably to be filed in court by the party making it. Doubtless such request might itself be filed in court provided it reaches the judge within the four days specified in G. L. c. 215, § 11. The appealing party would incur no liability by giving the order in writing for preparation of the papers in such circumstances. He would simply be complying with the statute, and would put upon the register the burden of furnishing him with the estimate. Since the register obviously would be under the necessity of awaiting the filing of the required report by the judge before giving the estimate, the appealing party likewise must wait until notice is given him in writing of the amount of such estimate before taking the next step open to him in prosecuting his appeal. When such estimate has been given, then he must within twenty days after its date pay the amount of the estimate or his appeal with go for naught and his order for preparation of the papers will be canceled, unless some other form of relief be afforded.

Clearly, the appealing party was entitled as of right to a report of the material facts by the judge. That is not only established by the statute but is essential to give the appellant an effectual review on appeal. Snow v. Boston Blank-Book Manuf. Co., 153 Mass. 456, 458-459, 26 N. E. 1116;Worcester v. Lakeside Manuf. Co., 174 Mass. 299, 300, 54 N. E. 833;Dwyer v. Dwyer, 239 Mass. 188, 190, 131 N. E. 328;Building Inspector of Salem v. Gauthier, 259 Mass. 615, 156 N. E. 684. Moreover, in view of the request for a report of material facts, the record was not complete in essentials, so that controverted questions might be considered intelligently and the cases be decided with due regard to all the rights of both parties. Donnell v. Goss, 267 Mass. 444, 166 N. E. 725. The cases were not ripe for entry in the full court until such report was filed. But, as hitherto pointed...