Smith v. Smith
| Decision Date | 21 March 1923 |
| Citation | 138 N.E. 539,244 Mass. 320 |
| Parties | SMITH v. SMITH. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Probate Court, Dukes County; Raymond A. Hopkins, Judge.
Proceeding by Arthur C. Smith for the probate of the will of Lucy J. Dix, deceased, opposed by Henry L. Smith. From a decree dismissing the petition, the petitioner appeals. Affirmed.
The alleged will could not be found, and the petition prayed for proof and allowance of an alleged copy. The trial judge found that it did not appear and was not proved that the original instrument was in existence at the time of the death of the testatrix or any time thereafter, and that the presumption that it was revoked by the testatrix during her lifetime had not been overcome or rebutted.
Abner L. Braley, of Boston, for appellant.
George H. Shields, of Boston, for appellee.
This is a petition to the probate court for Dukes county seeking to have admitted to probate a lost will by copy. The decree dismissing the petition recited:
‘It appearing after hearing thereon, that the original last will and testament of said deceased, of which the instrument herein recited purports to be a copy, was not in existence, uncancelled and unrevoked, at the death of said Lucy J. Dix, and it not appearing that said original will was fraudulently destroyed by any other person before or after the death of said Lucy J. Dix.’
The judge, on request of the appellant under G. L. c. 215, § 11, reported the material facts as found by him, including the following: That the original will was duly executed on January 17, 1914; that the paper offered was a copy of the original; that since execution of the will Lucy J. Dix lived with her son, the petitioner, and had told divers persons in substance that she had left everything to him; that he did not find a will among her papers when he was appointed conservator of her property in July, 1920; and that a search made by him after her death, which occurred April 25, 1921, failed to disclose the paper. The last paragraph of the judge's report reads:
‘I find on all of the evidence that it does not appear and was not proved that the instrument, a copy of which was offered for probate, was in existence at the time of the death of the testatrix, or any time thereafter, and that the presumption that said instrument was revoked by the testatrix during her lifetime has not been overcome or rebutted, and that therefore I disallowed the petition for...
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