255 Mass. 611 | Mass. | 1926
Bernard Steuer died in Boston, August 5, 1921, leaving a will in which Jennie D. Steuer, therein referred to as his wife, was nominated as executrix. She died about three weeks prior to the date of his death and the will was offered for probate by two of the petitioners who allege that they are daughters of the testator and that they and two other daughters are his heirs at law and next of kin. Moses H. Steuer, a brother of Bernard, entered his appearance as a creditor and heir, and moved that issues be framed to determine the validity of the will. The questions' here involved relate to the decrees admitting the will to probate, granting the motion of one of the petitioners asking that the appearance of Moses H. Steuer be stricken from the record, and denying the petition of Moses H. Steuer to strike from the record the names of the petitioners for the probate of the will, and their two sisters, on the ground that they are not the legitimate children of Bernard Steuer and are not entitled to any interest in his estate. The petition for the probate of the will was heard by the judge at the same time with the motions hereinbefore mentioned. Moses H. Steuer was given opportunity to be heard upon all of these matters. The only ground upon which the probate of the will was opposed was that it was not properly executed. During the hearing on this matter Moses H. Steuer said: “I have no objection to the allowance of the will provided it should not act as res judicata in the trial of that question in the Land Court.”
Two of the witnesses to the will testified, one orally and one by deposition. Upon the testimony of one of these witnesses, that the legal formalities required in the execution of a will were complied with, the probate judge could find that the will was duly executed and admit it to probate unless prevented from so doing by the absence of the third witness. Tilden v. Tilden, 13 Gray, 110. Hammill v. Weeks, 225 Mass. 245. The petitioners offered evidence tending to prove that they were unable to make service on this witness, and that he left Boston in July, 1922, and had not been heard of by his family since that time. His signature to the will was identified.
“The decree of the court admitting the will to probate is in the nature of a judgment in rem, which establishes the will against all the world. Any person interested may make himself a party to the proceedings by applying to the proper tribunal.” Bonnemort v. Gill, 167 Mass. 338, 340.
The will made provision for the testator’s children, and the petitioners as possible beneficiaries under it had a right to offer it for probate. G. L. c. 193, § 7.
The issue of legitimacy of the children was first specifically raised by the motion of Moses H. Steuer, although the same question was incidentally involved in his appearance to oppose the will as an heir at law, and in the motion of one of the petitioners that the appearance of Moses H. Steuer be stricken from the record. At the hearing, the appellant admitted that the testator and Jennie D. Weinfeld were married in Austria in 1878 or 1879, at a wedding ceremony performed in accordance with the requirements of the Jewish religion, and were the parents of the petitioners and their two sisters, but he contended that the marriage was illegal. The question, whether Moses H. Steuer was entitled to contest the probate of the will as an heir, is preliminary to the question whether the instrument offered for probate is to be allowed, even if the issues are tried together. Wellington v. DeCordova, 251 Mass. 229.
The motion of one of the proponents of the will to have the name of Moses H. Steuer stricken from the record raised no new issue and did not change the burden of proof. The party seeking the right to oppose the will must establish that
This court has no jurisdiction to consider an appeal from a decree of the Probate Court unless it is taken by a person aggrieved by the decree. G. L. c. 215, § 9. Pattee v. Stetson, 170 Mass. 93, 94. In the present case the sole ground for entertaining the appeal of Moses H. Steuer from the decree allowing the will is his contention that he is heir at law and next of kin of his brother. The burden is upon him to prove by a fair preponderance of evidence that he had a right to contest the will as an heir and to appeal from the decree of the Probate Court. Pattee v. Stetson, supra. If neither his pecuniary interest nor personal rights are affected by the decree, he is not a person aggrieved. Pierce v. Gould, 143 Mass. 234. Smith v. Bradstreet, 16 Pick. 264. Lawless v. Reagan, 128 Mass. 592. Leyland v. Leyland, 186 Mass. 420. It is within the power of the court to require the appellant to prove his standing at once as the first step in his case. Goff v. Britton, 182 Mass. 293, 295. If Moses H. Steuer is not an heir at law of the testator, his appeal from the allowance of the will should be dismissed for want of jurisdiction. Pattee v. Stetson, supra. Goff v. Britton, supra, page 294.
The ruling that the burden was upon the children to prove that they were legitimate was too favorable to the appellant.
The trial judge found in part as follows: “The real issue involved in the petition to strike from the record the appearance of Moses H. Steuer as a party in interest, and in the petition of Moses H. Steuer to strike from the record the names of said four daughters, is the legitimacy of said four daughters, which legitimacy depends upon whether or not the deceased and his wife, Jennie D. Steuer, were ever lawfully married. The contention of Moses H. Steuer was that a marriage ceremony, at which he testified he was present, performed in Mielec, then a part of Galicia in- the country of Austria (now a part of Poland), between said Bernard
“A commission was duly issued authorizing the taking of depositions of certain persons in Mielec, to which commission interrogatories and objections thereto were duly attached. Moses H. Steuer admitted and I find that he personally carried said commission to Mielec, that he interviewed the witnesses, that he interviewed and employed the magistrate who took the depositions, and that he, the said Moses H. Steuer, accompanied the witnesses on the railroad train from Mielec to the town in which the office of the magistrate was located and talked with the witnesses while on the train, and that he was in the corridor leading to and remained just outside of the office of the magistrate during the time the witnesses gave their depositions. Said Moses H. Steuer admitted and I find that he personally received from said magistrate said commission and depositions, and that he brought them from Poland to this city and deposited them with the register of probate in this county.
“During the hearings it appeared, and I find, that about 1878 in said Mielec, where said Bernard Steuer and Jennie D. Steuer (born Jennie D. Weinfeld), then resided, they were married by a person authorized under the laws and customs of the Jewish religion so to do according to the customs and rites of said religion; that Moses H. Steuer was not present at the marriage ceremony; that for some time prior to said ceremony taking place it was known in the town that the marriage was to take place and, at the time of the marriage, that is to say, on the day of and for the two days following the marriage, there was a celebration of the marriage taking the form of feasting and dancing attended by a considerable
“For this period of nearly forty years the said Bernard Steuer and the said Jennie D. Steuer lived together as husband and wife and were known as husband and wife in the communities in which they lived, and were so recognized and regarded by those who knew them. I find that they were both very religious persons, having strong faith and belief in the Jewish religion. Some evidence of this is shown in the language contained in said last will. I find that the father of said Bernard Steuer and Moses H. Steuer died when they were very young and that later their mother remarried in said Mielee and that there are now living born of said remarriage three children, half sisters of said Bernard Steuer and Moses H. Steuer.
“The said Moses H. Steuer offered in evidence before me as proof of the fact of what the law of Austria was at the time of the taking place of said marriage ceremony certain volumes said to contain the statute or code law of Austria then in force. I admitted the same in evidence. This was
“I further find that the said marriage ceremony was valid and legal and that said Bernard Steuer and Jennie D. Steuer were lawful husband and wife and continued to live as such from the time of said marriage to July 19, 1921, when said Jennie D. Steuer died, and that said Bernard Steuer died on August 5, 1921. I find that said Henrietta S. Finer, Celia S. Wasserman, Elisabeth Steuer, and Marion Steuer are the legitimate children of the deceased testator, Bernard Steuer. I further find that said Moses H. Steuer is a brother of said Bernard Steuer but is not his heir-at-law and is not a party in interest.”
Marriage may be proved by an admission thereof by an adverse party, by evidence of general repute or of cohabitation of the parties as married persons, or of any other fact from which it may be inferred. G. L. c. 207, § 47. A marriage may be proved by oral evidence without' offering a record. Commonwealth v. Dill, 156 Mass. 226. Commonwealth v. Hayden, 163 Mass. 453.
Cohabitation and conduct are always admissible to prove marriage. Commonwealth v. Hurley, 14 Gray, 411. ‘ ‘ The policy of the law, as thus expressed, is strongly opposed to regarding a marriage, entered into in good faith, believed by one or both of the parties to be legal, and followed by cohabitation, as void. A liberal construction of the statute authorizes us to construe it as including a case where the parties go before a magistrate or minister, make a marriage contract in some form in his presence, in the belief that he sanctions or assents to it in his official capacity, and cohabit
It follows that a person attacking a foreign marriage has the burden of proving the foreign law on which he relies. “Where there is no extrinsic evidence either way, the legality of a marriage, like sanity, continuance of life, or regularity of acts of public officers, will be assumed. But where it is attacked and evidence is introduced tending to impeach it, then a question of fact arises to be proved in the light of all the circumstances and the reasonable inferences from them. . . . The law jealously regards the marriage relation and makes reasonable assumptions in its favor .... The validity or invalidity of the marriage drawn in question must be established, by the party upon whom the burden of proof is cast, upon all the facts with the reasonable inferences flowing from them.” Turner v. Williams, 202 Mass. 500, 504, 505.
The appellant contends that the parties failed to comply with certain requisites for a valid Jewish marriage in Austria in 1878, among which were (1) A proclamation or publication of the banns in the synagogue on three Sabbaths or holidays; (2) that in the case of a minor whose father is dead, the consent of the court should be obtained; (3) that with men of military age the consent of the military authorities must be obtained; and (4) that the marriage must be performed by a rabbi or religious instructor. The report of the commissioner of labor on marriages and divorce in the United States, 1867 to 1886, including an appendix relating to marriage in certain countries of Europe, was not competent to prove the law of Austria; but it was admitted and we must
Upon appeal from a decree of the Probate Court, with the testimony reported, the decree must be affirmed unless an examination of the evidence shows that it is plainly wrong. Townsend v. Townsend, 243 Mass. 401, 403. Drew v. Drew, 250 Mass. 41, 44. Needham Trust Co. v. Cookson, 251 Mass. 160. Even if the contention of the appellant that the trial judge disbelieved the evidence offered by him on vital points be true, this in itself presents no sufficient ground for reversing the findings. It was for that court to decide what weight should be given to the evidence relating to the law of Austria and to the testimony of witnesses, both by way of deposition and orally. In weighing the evidence we cannot say that it would be clearly wrong for the judge to give more weight to the inference that the marriage was valid and the children legitimate (which he had a right to draw from the facts admitted and found by him), than to any evidence in the case tending to prove the marriage invalid. The findings, that the law of Austria at the time of the marriage had not been satisfactorily proved, that assuming the volumes admitted contained the law of Austria at the time of the marriage there was a failure to prove the contracting parties had not complied with the requirements of those laws, and that the petitioners and their two sisters are the legitimate children of the deceased testator, are conclusive against the con
The decrees allowing the petition to strike out the appearance of Moses H. Steuer and denying the petition of Moses H. Steuer that the names of the heirs at law and next of kin mentioned in the petition for the probate of the will be stricken from the record are affirmed, with costs of this appeal; and the appeal from the decree approving and allowing the will is dismissed.
Ordered accordingly.