Olsson v. Waite

• Decision Date: 28 October 1977
• Citation: 368 N.E.2d 1194,373 Mass. 517
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 1194

368 N.E.2d 1194

373 Mass. 517

Arnold W. OLSSON v. Christine D. WAITE Supreme Judicial Court of Massachusetts, Worcester.

Argued May 6, 1977.

Decided Oct. 28, 1977.

Charles B. Swartwood, III, Worcester, for Arnold W. Olsson.

John A. Romano, Worcester, for Christine D. Waite.

Before HENNESSEY, C. J., and QUIRICO, BRAUCHER, KAPLAN and LIACOS, JJ.

QUIRICO, Justice.

This case presents questions arising out of three decrees entered by a judge of the Probate Court with reference to the estate of the late Ann Francis. On October 17, 1972, the judge entered a decree disallowing the petition for the probate of the purported will of Ann Francis, the basis for the disallowance being an express finding that the named testatrix had destroyed the will with the intention of revoking it. On November 3, 1972, Mr. Arnold W. Olsson, the proponent and sole beneficiary under that will, appealed from that decree. On November 16, 1972, Mr. Olsson filed a motion to vacate that decree, and on December 1, 1972, the judge after a hearing, entered a new decree vacating his decree of October 17, 1972. On December 6, 1972, Christine D. Waite, the daughter and sole heir at law of Ann Francis, and Anthony Francis, the divorced husband of Ann Francis, filed a petition to vacate the decree of December 1, 1972, and after a hearing held thereon the judge entered a third decree on December 18, 1972, dismissing the petition. Waite and Francis appealed from the decrees of December 1 and of December 18, 1972. Francis withdrew his appeal on September 13, 1973.

The appeals were entered in and argued before the Appeals Court. On February 9, 1977, that court rendered its decision affirming the decree of October 17, 1972, that had disallowed the will; reversing the decree of December 1, 1972, and treating the appeal from the decree of December 18, 1972, as waived and therefore dismissing it. Olsson v. Waite, --- Mass.App. --- ^a, 359 N.E.2d 656 (1977). On the application of Olsson, we granted further appellate review. G.L. c. 211A, § 11.

Having further reviewed the issues raised by these appeals, we reach the same result as did the Appeals Court, and for substantially the same reasons stated in the opinion of that court.

1. Decree of October 17, 1972. Mr. Olsson's appeal from the decree of October 17, 1972, disallowing the will of Ann Francis for probate is before us on the basis of the petition for probate, the transcript of the evidence presented at the hearing on the petition, the decree disallowing the will, Mr. Olsson's appeal therefrom, and a report of the material facts found by the judge as the basis for that decree.

We summarize the material facts found by the judge to the extent that they are relevant to his disallowance of the will. Ann Francis and her husband had had a long history of marital problems which culminated in his obtaining a decree of divorce nisi on November 10, 1971. This came after a strongly contested hearing at which their daughter, Christine D. Waite, testified in favor of her father, leaving the mother embittered against her. On January 13, 1972, Ann Francis executed a will naming as the executor and sole beneficiary thereunder Mr. Olsson, who had been a friend of both Mr. and Mrs. Francis for some years. The will was drawn by a lawyer other than Mr. Olsson. The lawyer had Ann Francis execute the original will which he gave her and also a carbon copy of the will which he kept in his files. The will expressly stated that nothing was being left to the husband or daughter.

The divorce decree against Ann Francis became absolute on May 10, 1972. On May 23, 1972, Ann Francis said, in the presence of her daughter and her former husband: "I have torn up my will." The judge found that this indicated "that she wanted her daughter to have all her estate by inheritance, the divorce now being absolute and the divorced husband now having no claim to share in her estate."

Ann Francis committed suicide on June 2, 1972, in the house where she lived. In the several days following, her former husband, Mr. Olsson and others searched the house for the original will but they did not find it. Mr. Olsson then obtained the executed carbon copy of the will from the lawyer who had drawn it, and on June 8, 1972, he filed a petition for its allowance and for his appointment as executor. Hearings were held on this petition on October 11 and on October 16, 1972, at which the judge received evidence consisting almost entirely of the oral testimony of the lawyer who drew the will and the other two attesting witnesses thereto, a neighbor of Ann Francis, Mr. Olsson, one of his secretaries, the daughter, and the former husband of Ann Francis. As already noted above, on October 17, 1972, the judge entered a decree stating that the petition was "disallowed, this so-called will being a copy of the revoked original will." Mr. Olsson filed a claim of appeal from that decree on November 3, 1972. On November 29, 1972, the judge filed his report of material facts which we have summarized in part above. The report concluded as follows: "I find that the testator revoked the will by destrorying it and that this is carried over and makes it necessary to disallow the copy as her last will and testament . . . . I gave a great deal of thought as to whether some other person had destroyed the will so that the errant daughter would inherit but I find no evidence to warrant even the thought."

If Mr. Olsson's appeal from the decree of October 17, 1972, disallowing the will is properly before us, there is no question about the applicable standard of our review thereof when, as here, we have before us all the evidence which the judge had before him and, in addition thereto, his findings. "It is our obligation to review the evidence and reach a decision in accordance with our own reasoning and understanding, giving due weight to the findings of the trial judge, which we will not reverse unless they are plainly wrong, and finding for ourselves any additional facts we believe to be justified by the evidence." Petition for Revocation of a Decree for Adoption of a Minor, 345 Mass. 663, 669, 189 N.E.2d 194, 198 (1963). Holsinger v. Holsinger, 357 Mass. 1, 3-4, 255 N.E.2d 1352 (1970). O'Brien v. Wellesley College, 346 Mass. 162, 170, 190 N.E.2d 879 (1963); Grossman v. Grossman, 343 Mass. 565, 566, 179 N.E.2d 900 (1962). Shattuck v. Wood Memorial Home, Inc., 319 Mass. 444, 445, 66 N.E.2d 568 (1946); Osborne v. Craig, 251 Mass. 169, 172, 146 N.E. 263 (1925). The citations of numerous additional decisions by this court on this point are collected in the footnotes to 2 G. Newhall, Settlement of Estates § 301 (4th ed. 1958), and it is unnecessary to reproduce the list in this opinion.

In applying this general rule to this case we start with the fact, obvious from a reading of the transcript, that there was evidence which, if believed, permitted the judge to find that the original will had been torn up by Ann Francis with the intention of revoking it. Therefore, "the crucial question for our decision is whether we can say that the finding of . . . (such tearing and revocation) was plainly wrong. 27 . . The question is not what finding we ourselves would have made on the same evidence. The case is one in which widely differing inferences could be drawn from the evidence, and it is not one where the drawing of inferences can be separated from the evaluation of the testimony itself. . . . Most of the evidence was given orally. The value of the testimony of the witnesses depended in great measure upon their appearance and their manner of testifying on the stand. In such a case we must give full recognition to the advantage possessed by the trial judge, who saw and heard the witnesses" (citations omitted). Goddard v. Dupree, 322 Mass. 247, 248, 76 N.E.2d 643, 644 (1948).

We conclude that the finding of the judge that the will had been torn up by Ann Francis with the intention of revoking it was not plainly wrong, and that the entry of the decree of October 17, 1972, disallowing the will was not error.

The Appeals Court noted that Mr. Olsson failed to argue his appeal from the decree of October 17, 1972, in his brief before that court. Olsson v. Waite, --- Mass.App. ---, --- ^b, 359 N.E.2d 656 (1977). That is a separate and independent reason for reaching the same result which we have reached above, except that the affirmance of that decree would be based on the familiar rule that the failure to argue an issue is to be treated as a waiver of the appeal thereon. This would be true whether the appeal procedure were governed by the more recent Mass.R.A.P. 16(a)(4), as amended, 367 Mass. --- (1975), or by the earlier versions of S.J.C. Rule 1:13, as amended, 366 Mass. 853 (1975), or Rule 1:13 of the Appeals Court, as amended effective February 27, 1975, 3 Mass.App.Ct. --- (1975). Pridgen v. Boston Hous. Auth., 364 Mass. 696, 716, 308 N.E.2d 467 (1974). Gelinas v. New England Power Co., 359 Mass. 119, 126-127, 268 N.E.2d 336 (1971); Lolos v. Berlin, 338 Mass. 10, 13-14, 153 N.E.2d 636 (1958).

Before the Appeals Court and before this court, counsel for Mr. Olsson took the position that the only matters properly pending for appellate review were (a) the decree of December 1, 1972, which purported to vacate the decree of October 17, 1972, and (b) the decree of December 18, 1972, dismissing the petition to vacate the decree of December 1, 1972. Having taken that position, we think mistakenly, Mr. Olsson did not cover the matter of his own appeal from the decree of October 17, 1972, in his brief. He apparently asked the Appeals Court to permit him to file a further brief on that point in the event that the court concluded, as it did, that the judge was wrong in vacating that decree. The Appeals Court denied that request in language which we quote in the footnote below, ¹ and concluded that, in any event, there was no merit to his appeal from the decree of October 17,...