Old Colony Trust Co. v. Wallace

• Decision Date: 19 June 1912
• Parties: OLD COLONY TRUST CO. v. WALLACE et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

212 Mass. 335

98 N.E. 1035

OLD COLONY TRUST CO. v. WALLACE et al.

Supreme Judicial Court of Massachusetts, Suffolk.

June 19, 1912

COUNSEL

Conrad Reno, Richard J. Talbot, and Fred P. Squier, all of Boston for appellants.

Currier Rollins, Young & Pillsbury and Richard Y. Fitzgerald, all of Boston, for appellee.

OPINION

MORTON J.

This is an appeal from a decree of the probate court of Suffolk county allowing an instrument dated April 17, 1905, as the last will and testament of one Mary E. Phelps. The case was heard by a single justice without a jury. He ordered a decree to be entered affirming the decree of the probate court and remanding the case to that court for further proceedings. The case comes here on exceptions by the appellants to various rulings and refusals to rule by the single justice. We take up and consider the exceptions only so far as they have been argued by the appellants, treating the others as waived.

1. The appellants are sisters and a half-sister of the testatrix. Another sister, Mrs. Adams, and her children, are the principal beneficiaries under the will. The record shows an appearance by Lyman W. Griswold, an attorney at law in behalf of Mrs. Adams, in favor of the petition, and he was present during a part of the hearing before the single justice. Mrs. Adams was called as a witness by the appellants and they claimed the right to cross-examine her as an adverse party. The court ruled that they were not entitled as of right to cross-examine her, and the appellants duly excepted. This is the first exception. Although 'the decree of the court admitting the will to probate is in the nature of a judgment in rem, which establishes the will against all the world' (Bonnemort v. Gill, 167 Mass. 338, 340, 45 N.E. 768, 769), the executor and contestants are so far adverse parties that, as was assumed in Moore v. Stoddard, 206 Mass. 395, 92 N.E. 502, the executor has a right to file interrogatories under R. L. c. 162, § 41, which the contestants can be required to answer. In the present case, however, Mrs. Adams was not a party to the proceedings. The only parties were the executor on one side and the contestants or appellants on the other. While, if a proper case was made out, it was within the discretion of the single justice to have allowed her to appear and be heard in support of the will (Old Colony Trust Co. v. Bailey, 202 Mass. 283, 290, 291, 88 N.E. 898), no such rule or order was passed, and she was not therefore in any proper sense a party to the proceedings. The appearance of an attorney in her behalf in favor of the petition for allowance of the will did not without anything more constitute her a party to the proceedings so as to entitle the contestants to cross-examine her as an adverse party. This exception must therefore be overruled.

2. The contestants asked the court to rule that 'upon all the evidence the petition should be dismissed for want of jurisdiction' on the ground that the petitioner had no standing in court as executor. The ruling was rightly refused. By the act of incorporation the petitioner was authorized 'to establish and maintain a safe deposit loan and trust company in the city of Boston, with all the powers and privileges and subject...