Theberge v. Howe

Citation314 Mass. 22,49 N.E.2d 457
PartiesTHEBERGE v. HOWE et al.
Decision Date24 May 1943
CourtUnited States State Supreme Judicial Court of Massachusetts


Petition by E. Louise Theberge, administratrix, against Maud Snow Howe and others to revoke a decree of distribution. From a final decree revoking the decree of distribution, the respondents appeal.

Affirmed.Appeal from Probate Court, Middlesex County; J. V. Phelan, Judge.


H. D. Linscott, of Lynn, for petitioner.

G. R. Farnum and O. Tudor, both of Boston, for respondents.

RONAN, Justice.

E. Louise Howe, now E. Louise Theberge, the administratrix of the estate of her husband, Charles E. Howe, filed a petition for distribution in which it was alleged that the persons named were entitled to receive the proportionate part of the estate mentioned therein, and a decree for distribution in accordance with the allegations of the petition was entered in the Probate Court for Essex County on December 10, 1929. By that decree one half of the estate was ordered distributed to the widow, and the remaining one half, instead of being distributed equally among seven nieces and nephews, was ordered divided one sixteenth to each of six named nieces and nephews and one eighth to Charles T. A. Howe, a nephew. Distribution was made to all persons named in the decree except to Charles T. A. Howe, whose residence was unknown to the administratrix. It now appears that he died in Texas in 1940. No part of his share was paid to him. His administratrix and his daughter are the respondents in the present petition, brought by the administratrix of the estate of Charles E. Howe to revoke the decree of December 10, 1929, and they have appealed from the final decree revoking that decree.

The case was heard in the Probate Court upon the statements of counsel and documentary evidence, which consisted principally of the probate records in the estate of Charles E. Howe. The petition for distribution was lost, but the parties agreed that its allegations conformed to the provisions of the decree, which ordered the distribution per stirpes among the nephews and nieces. The judge filed a report of material facts which included a finding that the petition was made out on the blank form prescribed for such petitions and contained a prayer for distribution ‘among such persons as may be proved to be entitled thereto, according to law’; that it was the practice for the judge to sign decrees in blank, with the understanding that they would be filled out according to the prayer of the petition; and that upon the evidence and the inferences to be drawn therefrom and in view of the practice of the court, the decree for distribution did not represent the actual decision made by the judge.

The nephews and nieces were entitled to share equally in the estate, G.L.(Ter.Ed.) c. 190, § 3(5); Snow v. Snow, 111 Mass. 389;Balch v. Stone, 149 Mass. 39, 20 N.E. 322, and the decree which gave one of the nephews twice as much as each of the other nephews and nieces, was erroneous as matter of law. The error, in view of the allegations of the petition and the recitals in the decree, was apparent on the face of the record. Doubtless, the judge would not have entered the decree if he had realized that he was not ordering a distribution to be made per capita among the nephews and nieces. He was probably misled by the allegations in the petition seeking a distribution per stirpes. There is nothing in the record to support the finding that the judge did not intend to enter the decree that was in fact entered. It is apparent he ordered distribution in the manner requested. That finding accordingly must be disregarded. Yankee Network, Inc., v. Gibbs, 295 Mass. 56, 3 N.E.2d 228;Hinckley v. Barnstable, 311 Mass. 600, 42 N.E.2d 581.

The question presented is whether the Probate Court had jurisdiction to revoke a decree for distribution which, although it showed a relationship among the beneficiaries that required an equal division among them, ordered that one of them should be given twice as much as each of the others.

A Probate Court has the power to correct manifest mistakes appearing upon the face of its records that could be corrected in a court of equity by a bill of review. Stetson v. Bass, 9 Pick. 27;Waters v. Stickney, 12 Allen 1,90 Am.Dec. 122;Goss v. Donnell, 263 Mass. 521, 524, 161 N.E. 896;Greene v. Springfield Safe Deposit & Trust Co., 295 Mass. 148, 153, 154, 3 N.E.2d 254;Parsekian v. Oynoian, 299 Mass. 543, 546, 13 N.E.2d 409, 115 A.L.R. 470;Lewis v. National Shawmut Bank, 303 Mass. 187, 21 N.E.2d 254;Kennedy v. Simmons, 308 Mass. 431, 32 N.E.2d 215. It was said in Boston & Maine Railroad v. Greenfield, 253 Mass. 391, at page 397, 149 N.E. 322, at page 324, that ‘A bil...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT