Untersee v. Untersee
| Decision Date | 02 January 1936 |
| Citation | 293 Mass. 132 |
| Parties | EMIL A. UNTERSEE, executor, v. MAXIMILIAN UNTERSEE. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
November 8, 1935.
Present: RUGG, C.
J., CROSBY, PIERCE DONAHUE, & QUA, JJ.
Equity Pleading and Practice, Decree. Probate Court, Decree, Jurisdiction.
In a petition in equity in a probate court, after reference to and report by a master and a motion to recommit to the master heard, a decree confirming the master's report and adjudicating the issue involved was final and the court was without jurisdiction over a petition to vacate it.
PETITION, filed in the Probate Court for the county of Norfolk on May 1, 1935.
The petition was heard by McCoole, J. H. W. Keyes, Jr., for the petitioner.
R. B. Heavens, for the respondent.
This is an appeal by the surviving executor under the will of Franz Joseph Untersee, late of Brookline in the county of Norfolk deceased. The appeal was filed May 18, 1935, and is from a decree of the Probate Court dismissing said executor's petition, presented on May 1, 1935, wherein the petitioner prayed that
The report of material facts by the judge of probate discloses that in June, 1932, Maximilian Untersee, a beneficiary under the will of said Franz Joseph Untersee, of which the petitioner is the surviving executor, filed a petition in equity. Said petition alleged that under the will Maximilian and a brother of his Carl Untersee, were entitled to a legacy which they had not received and which had been turned into cash by the executor and was being held by him as a part of the distributive shares of the residual legatees. The matter was referred to a master to hear the parties and their evidence, and report to the court. After hearing the parties the master filed his report in the Probate Court, with the objections of Emil A Untersee, executor, annexed thereto. The matter was thereafter set down for a hearing on May 21, 1934. Counsel for both parties appeared and submitted to the court various motions, memoranda and requests for rulings. The then petitioner, Maximilian Untersee, submitted a motion to confirm the report and a motion for the entry of a decree, a brief in support of his motion for a decree and a large number of requests for rulings of law. The executor submitted three motions to recommit the matter to the master on various points, and memoranda to support his motions to recommit. Counsel for both parties argued respectively in support of and against the motions to recommit for approximately forty minutes each. Thereupon the judge expressed his desire to read the papers in the case thoroughly and examine the memoranda submitted by both parties, and stated to counsel that if he needed further assistance by way of argument the parties would be notified and a date set. The judge also expressed his willingness to receive any further memoranda or comments bearing upon the case which either of the two parties might care to submit. Counsel for Maximilian Untersee, the then petitioner, did submit memoranda referring to the matters raised by the then respondent's motions to recommit. After consideration of the report of the master and various memoranda, motions and requests of the parties, a decree was entered on March 25, 1935, confirming the master's report, adjudicating that there was a legacy due the then petitioner (Maximilian) and his brother as alleged, and determining the value thereof and the proportions due said petitioner and his brother Carl Untersee. Both counsel were notified by the register of the Probate Court of the entry of the decree and copies thereof were mailed to each. Within four days subsequent thereto counsel for the executor requested the judge in writing to make a report of material facts. Such report was filed by the judge on April 9, 1935, and on April 10, 1935, notice of said filing was sent to counsel for the...
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