Renwick v. Macomber

• Decision Date: 09 October 1919
• Citation: 124 N.E. 670,233 Mass. 530
• Parties: RENWICK v. MACOMBER et al. HOWES v. SAME.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

233 Mass. 530

124 N.E. 670

RENWICK

v.MACOMBER et al.

HOWES

v.SAME.

Supreme Judicial Court of Massachusetts, Bristol.

Oct. 9, 1919.

Case Reserved from Supreme Judicial Court, Bristol County.

Petition for revocation of decree probating the will of Frederick W. Renwick by Harold S. Renwick against William B. McComber and others, wherein Kenneth Howe, administrator, intervened as petitioner. From a decree of the probate court, revoking its former decree, Macomber appealed to the Supreme Judicial Court. On reservation for the full court by a single justice. Decree reversed and decree entered dismissing the petition.

John W. Cummings and Charles R. Cummings, both of Fall River, for petitioners.

Eugene J. Hadley, of Boston, and Benj. B. Barney, of New Bedford, for respondent.

PIERCE, J.

The case is before us on a reservation by a single justice and is an appeal by the respondent from a decree of the probate court entered March 29, 1918, revoking its decree of August 2, 1907, allowing the will of Frederick W. Renwick. Frederick W. Renwick, although described in the will as of New York, at the trial in the appeal upon ample evidence was found by the single justice to have had his domicile at the time when the alleged will was executed and until his death in New Bedford, Mass. It follows that the probate proceedings were properly had in the county of Bristol in this commonwealth.

The assignment of Macomber to the attesting witness Clark conferred upon Clark at the most an interest in a fund which was contingent upon the death of Frederick W. Renwick without leaving a child or children. This was not such a present vested pecuniary interest in the property to be disposed of under the will as rendered the witness incompetent. Hawes v. Humphery, 9 Pick. 350,20 Am. Dec. 481;Northampton v. Smith, 11 Metc. 390, 396;Luke v. Leland, 6 Cush. 259;Boston Safe Deposit & Trust Co. v. Bacon, 229 Mass. 585, 118 N. E. 906.

The general notice by publication of the petition for probate of the will, and the mailing of a copy thereof to those interested in the estate were sufficient to justify the final decree admitting the will to probate, even if it failed to reach the petitioners in this appeal. Bonnemort v. Gill, 167 Mass. 338, 340, 45 N. E. 768.

The jurisdiction of the court which allowed the will without objection on the testimony of one witness only, was perfect over the parties and subject matter.

The decision in Renwick v. Macomber, 225 Mass. 380, 114 N. E. 720, is not res adjudicata of the pending issue for the reason, among others that no final decree has been made in the Supreme Judicial Court after rescript.

The facts reported do not in terms or by inference establish that the testimony of the single witness was fabricated and perjured, and are entirely consistent with the presumption of the honesty of the witness and of his purpose to state the truth and the whole truth as he understood it.

The facts found incontrovertibly prove that Macomber, the executor nominated in the will, while trustee of a fund held by himself and another for the benefit of the testator, was on terms of closest intimacy with the testator from 1902 until the death of the testator in 1907; they also establish that Macomber by reason of such relation and intimacy had knowledge that the testator was a victim of syphilis and paresis, that when he executed the will, and for a year before, he manifested unsoundness of mind by conduct and delusion, and that when he died less than a year thereafter he died of paretic dementia.

It is specifically found that the testator ‘left all his estate to Mr. Macomber, and in case he predeceased him, to Mr. Macomber's children’; as also ‘that the will was procured by undue influence on the part of the respondent Macomber, * * * that the respondent perpetrated a fraud upon the probate court by procuring the probate of the alleged will of Frederick W. Renwick, when he knew or should have known that Renwick was not competent to make a will, and that the instrument was procured by his (the respondent's) undue influence.’ Assuming, without deciding, that the single justice rightly found fraud in fact was perpetrated on the probate court by the failure of the executor, who was also sole legatee, to make known to the court when he offered the will for probate material facts which disclosed would have demonstrated that Frederick W. Renwick was not of sound and disposing mind and memory when he signed the...