128 Mass. 578 | Mass. | 1880
If an appeal from the original decree of the Probate Court, which appointed the present appellant administratrix, had been duly taken by a person entitled to appeal, the appeal would have vacated that decree; and if, upon such an appeal, the decree had been affirmed by this court, the final decree in the cause would have been the decree of this court as the Supreme Court of Probate, transmitted to the court below only to be carried into effect; and it would be doubtful, to say the least, whether it could have been revoked and annulled by the inferior court of probate, unless leave to apply to that court for the purpose had been reserved in the decree of this court. Southard v. Russell, 16 How. 547, 570, 571. United States v. Knight, 1 Black, 488, 489. Durant v. Essex Co, 101 U. S. 555. Baylies v. Davis, 1 Pick. 206. Clayton v. Wardell, 2 Bradf. 1. Stafford v. Bryan, 2 Paige, 45. Lyon v. Merritt, 6 Paige, 473. Utica Ins. Co. v. Lynch, 2 Barb. Ch. 573. Jewett v. Dringer, 4 Stew. (N. J.) 586. Ryerson v. Eldred, 18 Mich. 490. Singleton v. Singleton, 8 B. Mon. 340. Bush v. Madeira, 14 B. Mon. 212. Shedden v. Patrick, 1 Macq. 535.
But as it appears by the report that the person who undertook to appeal from the original decree did not prove that he was a person entitled to appeal, and for that reason only failed in his appeal, the decree of this court in legal effect merely dismissed that appeal, without passing upon the merits of the cause, and the decree below stood as if not appealed from. Gen. Sts. c. 117, §§ 15,16. Penniman v. French, 2 Mass. 140. Down
It was therefore within the power of the Probate Court, upon the application of the person in law entitled to administration, and who had no notice of the original petition, to revoke and annul its former decree, upon allegation and proof that the person thereby appointed administratrix was not the next of kin. 1 Williams on Executors (7th ed.) 579. Waters v. Stickney, 12 Allen, 1, 6. Richardson v. Hazelton, 101 Mass. 108. Carter v. Cutting, 8 Cranch, 251. Gen. Sts. c. 94, § 5; c. 95, § 4. The limitation of one year, imposed by the Gen. Sts. c. 117, §§ 11,12, upon a petition to this court for leave to appeal, does not apply to petitions to the Probate Court to revise its own decrees for mistake or fraud.
According to the terms of the report, this appeal from the decree of the Probate Court, revoking and annulling the original decree, and committing the administration to the public administrator, must therefore Stand for hearing.