Pepper v. Old Colony Trust Co.
| Decision Date | 06 March 1928 |
| Parties | PEPPER v. OLD COLONY TRUST CO. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Probate Court, Suffolk County; 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. From a decree denying the petition, petitioner appeals. Affirmed.
See, also, 159 N. E. 604.
M. Caro, G. F. Tucker, and M. W. Cottle, all of Boston, for appellant.
S. E. Gifford, of Boston, for respondent.
This is an appeal from a decree of the probate court for Suffolk county denying a petition to vacate a decree of that court which admitted to probate the will of Rufus E. Lawrence, purported to have been executed on April 22, 1922.
On December 20, 1922, the Old Colony Trust Company, as executor, filed a petition for the probate of the will, and on April 5, 1924, after a full hearing at which the present appellant, then the contestant, was represented by counsel, the court entered a decree allowing the will, and the contestant appealed; the appeal was dismissed by the probate court on November 13, 1924, for failure to perfect it. On October 29, 1924, the appellant filed in the probate court a petition praying that the decree of April 5, 1924, be vacated because of newly discovered evidence, which, she contended, would establish that the signatures of the testator and all three of the attesting witnesses were forgeries, and that the instrument admitted to probate was not the one signed by the testator on April 22, 1922. At the hearing on this petition the validity of the signatures of the testator and of the attesting witnesses was attacked, but the judge was satisfied that the decree should stand, and on December 5, 1924, entered a decree dismissing the petition, from which the appellant appealed. On May 22, 1925, this court affirmed the decree. Pepper v. Old Colony Trust Co., 252 Mass. 532, 147 N. E. 927. The present petition to vacate the decree of April 5, 1924, was filed in the probate court on January 26, 1927, and was heard on April 5, 1927, by the judge who had entered the decree admitting the will to probate, and who had also entered the decree of December 5, 1924, dismissing the petition to vacate the decree of April 5, 1924. The hearing was had upon the petition and affidavits thereto annexed, and on an offer of proof made by counsel for the petitioner. The petition was denied. The judge filed no findings of fact nor report of the evidence. After hearing, and at the conclusion of the petitioner's offer of proof, he stated:
‘I have no doubt on the subject-matter at all, and I will deny the petition and dismiss it.’
He further stated:
‘I make the ruling under the Renwick v. Macomber Case [233 Mass. 530, 124 N. E. 670] and if in any aspect it is a matter of discretion and in the exercise of my discretion, I will exclude it.’
The present petition to vacate the decree of April 5, 1924, admitting the will to probate was rightly denied. The probate court was without jurisdiction to set aside that decree. The question whether the will was duly executed was raised at the original hearing. The contention was made at the hearing on the first petition filed to vacate the original decree, which was affirmed by this court in Pepper v. Old Colony Trust Co., supra, that the signatures of the testator and of the witness were forgeries. The appellant contends that she has further evidence tending to show that the signatures of the testator and of the witnesses were forgeries. As the issue of the...
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Old Colony Trust Co. v. Pepper
...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......
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...It decides that on the facts before it there was no valid ground for revocation of the earlier decree. Nor does Pepper v. Old Colony Trust Co., 262 Mass. 570, 160 N. E. 446, so decide in dealing with a decree after rescript which stands on a different ground. See Old Colony Trust Co. v. Pep......
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