Sebastian v. Carroll

• Decision Date: 03 January 1968
• Citation: 233 N.E.2d 208,353 Mass. 465
• Parties: Constance B. SEBASTIAN v. Francis X. CARROLL.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 208

233 N.E.2d 208

353 Mass. 465

Constance B. SEBASTIAN v. Francis X. CARROLL.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Dec. 5, 1967.

Decided Jan. 3, 1968.

Ira L. Lipman, Brockton, for Constance B. Sebastian.

Louis Barsky, Boston, for Francis X. Carroll.

Before WILKINS, C.J., and WHITTEMORE, KIRK, SPIEGEL and REARDON, JJ.

WILKINS, Chief Justice.

This bill in equity to establish a constructive trust in certain land in Pembroke in Plymouth County was first brought in the Probate Court, Plymouth County, on September 2, 1966. The defendant entered his appearance and on September 12, 1966, filed a notice of removal to the Superior Court, Suffolk County, and on that date the case was accordingly transferred. In the Superior Court the case was consolidated for trial with two other related cases in which the defendant here was the plaintiff. After hearing, a judge in the Superior Court entered a final decree dismissing the bill. The plaintiff appealed.

The plaintiff's main contention before us is that the Superior Court lacked jurisdiction, and that the case should be remanded to the Probate Court for a new hearing.

By St.1963, c. 820, entitled, 'An Act providing that probate courts shall be courts of general equity jurisdiction,' § 6 of G.L. c. 215 was amended. The principal change was the addition of a first paragraph, which in material part provides: 'Probate courts shall have original and concurrent jurisdiction in equity with the supreme judicial and superior courts of all cases and matters of equity cognizable under the general principles of equity jurisprudence and, with reference thereto, shall be courts of general equity jurisdiction * * *; provided, however, that in proceedings of which probate courts have jurisdiction in equity solely by reason of the provisions of this paragraph a petitioner, respondent or intervener may, after proper service has been made, within seven days after the return day of the initial citation, remove the case to the superior court. The removing party shall first pay the register of probate an entry fee equal to that for an original entry in the superior court and shall file with the register a notice of removal and an affidavit setting forth the names and addresses of all other parties to the suit and of their attorneys. The register shall forthwith transmit all papers in the case and said entry fee to the clerk of the superior court for the county in which the suit was originally commenced, and shall notify in writing all parties and their attorneys of the transfer. Thereafter the case shall proceed as if originally entered in the superior court * * *' with exceptions of no present pertinence.

The second paragraph of the amended § 6 is the same as before the amendment except for adding the word 'also' (in supplied italics) in the quotation below. In relevant part, the second paragraph reads: 'Probate courts shall also have jurisdiction in equity * * * of all cases and matters relative to the administration of the estates of deceased persons, to wills, * * * to trusts created by will or other written instrument and, in cases involving in any way the estate of a deceased person or the property of an absentee whereof a receiver has been appointed under chapter two hundred or the property of a person under guardianship or conservatorship, to trusts created by parol or constructive or resulting trusts.'

This court has strictly construed statutory provisions extending the equity jurisdiction of the Probate Courts. See Derby v. Derby, 248 Mass. 310, 314, 142 N.E. 786; Wellesley College v. Attorney Gen., 313 Mass. 722, 725--726, 49 N.E.2d...