O'Sullivan v. Palmer

• Decision Date: 27 October 1942
• Citation: 312 Mass. 240,44 N.E.2d 958
• Parties: JOHANNA O'SULLIVAN v. GEORGE F. PALMER, administrator.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

312 Mass. 240

44 N.E.2d 958

JOHANNA O'SULLIVAN v. GEORGE F. PALMER, administrator.

Supreme Judicial Court of Massachusetts, Hampden.

October 27, 1942

September 17, 1942.

Present: FIELD, C.

J., QUA, DOLAN COX, & RONAN, JJ.

Probate Court Jurisdiction, Vacation of decree. Fraud. Executor and Administrator, Appointment.

Knowingly to represent falsely to a Probate Court, in a petition for appointment as administrator, that persons named therein as assenting were the only next of kin of the intestate was a fraud on the part of the petitioner which warranted revocation of a decree making such appointment without the issuance of a citation; and the administrator's situation was not helped by the fact that an earlier petition for a different appointment had been filed, a citation had been issued thereon, and it had been dismissed.

PETITION, filed in the Probate Court for the county of Hampden on March 12 1941.

The case was heard by Denison, J., and in this court was submitted on briefs.

T. H. Kirkland, for the respondent.

H. M. Ehrlich &amp J.

L. Dowd, for the petitioner.

QUA, J. By a decree of August 20, 1941, the Probate Court for Hampden County revoked its former decree of July 2, 1940, whereby it had appointed George F. Palmer administrator of the estate of Mary Jane Quinlan, late of Holyoke. Palmer appeals from the decree of revocation.

Before Palmer filed his petition for appointment as administrator a petition had been filed by one who was not in fact next of kin to the deceased, wherein were named as the next of kin persons who were not in fact such. A citation had issued on this earlier petition, but the petition was "withdrawn and dismissed" when Palmer was appointed. Palmer in his petition represented that two persons named therein, who signed the petition for the purpose of assenting thereto were the only heirs at law and next of kin of the deceased, but at the hearing on the petition for revocation the judge found on evidence not reported that Palmer "knew of other next of kin and also that no notice had been given to them and no assents obtained"; and that "misrepresentation was made to this Court of facts concerning the next-of-kin."

The findings of the judge are findings of fraud on Palmer's part in obtaining his appointment as administrator. There is nothing in the record to control them, and they are decisive. It is settled that a Probate Court may revoke its decrees when obtained...