Old Colony Trust Co. v. Pepper

• Decision Date: 12 September 1929
• Citation: 167 N.E. 656,268 Mass. 467
• Parties: OLD COLONY TRUST CO. v. PEPPER.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

268 Mass. 467

167 N.E. 656

OLD COLONY TRUST CO.

v.PEPPER.^*

Supreme Judicial Court of Massachusetts, Suffolk.

Sept. 12, 1929.

Appeal from Probate Court, Suffolk County; Arthur W. Dolan, Judge.

Petition by Emma K. Pepper against the Old Colony Trust Company, to vacate a decree of the probate court admitting to probate the will of Rufus E. Lawrence, deceased. From a decree denying petition, petitioner appeals. Modified and as modified affirmed.M. W. Cottle, of Boston, for appellant.

S. E. Gifford, of Boston, for appellee.

RUGG, C. J.

The main prayer of this petition is that the ‘decree made and entered in Suffolk probate court on April 5, 1924, admitting to probate the alleged will of Rufus E. Lawrence, be vacated.’ Further incidental and general relief is sought, but that is all subsidiary to the one essential prayer. The long petition recites alleged newly discovered evidence as ground for the relief prayed for.

The facts pertinent to the grounds of this decision are:

An instrument purporting to be the will of Rufus E. Lawrence, deceased, late of Chelsea, with petition for its allowance, was presented to the probate court for Suffolk county. Full hearing was had on this petition, at which the present petitioner was contestant and was represented by counsel. A decree was entered, allowing the will as the last will of the decedent, on April 5, 1924. The contestant, the present petitioner, appealed from that decree, but more than seven months later that appeal was dismissed for failure to perfect it. On October 29, 1924, the present petitioner filed her first petition to vacate the decree of April 5, 1924, allowing the will. That first petition set out the discovery of ‘new and important evidence’ tending to show that the signature on the instrument admitted to probate as the will was not that of the decedent, but that his name was signed by some other person, and that the signatures of all the witnesses thereon were forgeries. That case was presented to the probate court on the petition and affidavits and testimony given by the attesting witnesses and certain others at the time of the trial of the petition for the probate of the will. On that record is the testimony of a handwriting expert. Manifestly there was a full hearing. The petition was dismissed on its merits. The petitioner appealed. On that appeal the record brought before this court covered more than 200 printed pages. The decision on that appeal, rendered in May, 1925, affirmed the decree dismissing the petition and is reported as Pepper v. Old Colony Trust Co., 252 Mass. 532, 147 N. E. 927. It appears in that opinion (page 534, of 252 Mass. ) that at ‘the hearing on the petition to probate the will the validity of the signature of the testator was directly attacked as being a forgery, and the signatures of the witnesses were questioned, but without much examination or testimony of witnesses.’ In January, 1927, the petitioner filed a second petition to vacate the decree of April 5, 1924, allowing the will. That petition also was denied and appeal was taken to this court. In the decision of that appeal, in March, 1928, Pepper v. Old Colony Trust Co., 262 Mass. 570, 572, 160 N. E. 446, 447, it appears that the hearing before the trial judge was upon the ‘petition and affidavits * * * and on an offer of proof made by counsel for the petitioner,’ and the petition was dismissed both as matter of law and as matter of discretion.

The decree dismissing that petition was affirmed on the ground that the ruling of law was right. The exercise of judicial discretion, although not there made the basis of decision, would also have been decisive that the decree was right, as appears in 252 Mass. at page 535, 147 N. E. 927. See Davis v. Boston Elevated Railway, 235 Mass. 482, 495-502, 126 N. E. 841;Commonwealth v. Marrelli (Mass.) 165 N. E. 2.

Thereafter the petitioner made application for reargument by letter to the Chief Justice. Such an application has no standing under our laws as a recognized part of our procedure, but is received and considered by the court ‘as friendly information to the justices of an oversight or manifest error, which, in the opinion of the justices, should call for correction or reargument.’ Wall v. Old Colony Trust Co., 177 Mass. 275, 278, 58 N. E. 1015, 1016;Powers v. Sturtevant, 200 Mass. 519, 86 N. E. 789;Brooks v. Secretary of Commonwealth, 257 Mass. 91, 95, 153 N. E. 322. That application, after consideration by the court, was denied, although certain minor changes in phraseology not affecting the reasoning or result were made in the opinion.

[3] The present, being the third, petition to vacate the decree of April 5, 1924, allowing the will of the decedent, was filed in September, 1928. At the hearing on this petition the judge directed attention to testimony of the handwriting expert of the petitioner, concerning the signatures on the will, given at the hearing on the first petition. The request, said then to have been for continuance to enable further examination of exhibits by this witness, was addressed to the discretion of the judge. Noble v. Mead-Morrison Manuf. Co., 237 Mass. 5, 16, 129 N. E. 669;Blankenburg v. Commonwealth, 260 Mass. 369, 378, 157 N. E. 693. It is also stated in this record that at the hearing of the first petition the trial judge granted the petitioner's requests for rulings presented in various forms to the effect that he had jurisdiction to vacate the decree of April 5, 1924, upon presentation of newly discovered evidence that the will was a forgery. Manifestly his decree denying that petition was based upon a finding that there was no forgery. This present petition was denied and decree to that effect entered, but no findings were filed. There was no error in this. The petitioner presents no argument requiring consideration not already settled by previous decisions in proceedings to which she was a party. Clark v. McNeil, 246 Mass. 250, 257, 140 N. E. 922;Burgess v. Burgess, 256 Mass. 99, 152 N. E. 75;Fuller v. Fuller, 261 Mass. 82, 158 N. E. 333. The reconciliation of Waters v. Stickney, 12 Allen, 1, 90 Am. Dec. 122, and Renwick v. Macomber, 233 Mass. 530, 124 N. E. 670, if any be needed, is not open to the petitioner at this stage.

This narration of the history of the litigation concerning the allowance of the will of the decedent speaks for itself. It seems to us to demonstrate that every reasonable opportunity has been afforded the petitioner to have her contentions fully heard and fairly decided. She had her day in court at the original hearing on the proof of the will. Every issue was then open to her. If any error of law then was committed, she omitted to have it corrected by her own failure to prosecute her appeal from...