182 Mass. 293 | Mass. | 1902
This is an appeal from a decree of the Probate Court allowing the first and final account of an executor. - It comes before us on exceptions taken by the appellants to the rulings of a single justice of this court, and the first question, although not pressed by the prevailing party, is whether the exceptions can be considered. They were seasonably filed but they were not presented to the justice for nine months, although he may be assumed to have been notified of them at once by the clerk. The failure to present the exceptions raised a doubt in the mind of the justice whether the right to go further with them might not have been lost since the statutes require the
The appellants and excepting parties are the children of a deceased son of the testator, and would have been entitled to a share of the testator’s property had he died without a will. They were omitted from the will, and they alleged that the omission was by mistake. Pub. Sts. c. 127, § 21. R. L. c. 135, § 19. They also claimed an interest in the residue as intestate - property on the ground that the residue was given to the testator’s son on the requirement that he should provide for the testator during the life of the latter, and “ in consideration of such filial duties well and truly performed,” that this requirement was a condition precedent and that it had not been performed. The executor denied the appellants’ interest and the single justice proceeded to try that question before going into the account. He found against the appellants upon both the issues of fact, and ordered the appeal dismissed. This the appellants contend was error. They contend in the first place,
We assume, for purposes of decision, that the items of distribution did not belong1 in the account, but that does not affect our opinion that the judge was warranted in trying the question which he did, at the time when he did, if in his discretion it seemed best. It very well may be that if he had thought it more convenient he might have allowed the appellants a locus standi on the strength of their allegations alone, or of the prima facie case made out by the admission of their relationship. Pattee v. Stetson, 170 Mass. 93, 95. But it is certain that it was within his power to require them to prove their standing at once. That was the first step of their case. His authority did not depend on the inclusion of a distribution in the account, but on the logic of the situation. If the appellants attempted to meddle with the executor, it was for them to prove their right to do so, before putting him to further proof. It would be an arbitrary rule of practice if their allegations were conclusive at that stage, and it is settled that there is no such rule. Pattee v. Stetson, 170 Mass. 93. Palmer v. Whitney, 166 Mass. 306, 310. Cleveland v. Quilty, 128 Mass. 578. The appellants admitted that they might be required to prove that they were next of kin. But if they could be required to prove anything they could be required to prove their whole case for their locus standi, or, in other words, that they were issue of a deceased child unintentionally omitted from the will. That was their
The appellants contend further that even if the judge had a right to try the questions upon which he passed, there was no evidence which warranted the findings which he made. This is a desperate contention and needs but a word. It is not denied that the statements of the testator to the scrivener were admissible. Wilson v. Fosket, 6 Met. 400. The scrivener testified that he said, “I want to give Joseph’s daughters four thousand dollars, but I shall not give it to them directly. I shall give it to Abbie D. Goff, their mother,” and, on being asked whether it would not be better to mention them by name in the will, said, “No, I have every confidence in Abbie that she will do the right thing.” It is argued that the testator may have intended to provide for the children and have been mistaken as to the way. It is enough that the justice at least was warranted in finding that there was no mistake, if such a mistake would have made any difference, where the omission was intentional, which it is decided that it would not have done. Hurley v. O’ Sullivan, 137 Mass. 86. As to the contention that the supposed condition of the gift of the residue was not fulfilled, the son testified that he did it faithfully, and the judge could not well have found otherwise than he did. Probably also there was no condition precedent. Colwell v. Alger, 5 Gray, 67. See Martin v. Martin, 131 Mass. 547.
At the trial a petition brought by the accountant in his personal capacity, we presume under St. 1893, c. 340, and still pending, was put in evidence. It set up a title of the petitioner as devisee, alleged the claim made by the appellants and sought to compel them to bring an action to try their title. It is not argued that the pendency of such a proceeding could affect the accountant’s right to dispute the appellants’ title to intervene here. It needs no further mention.
Probably in consequence of the delay in presenting the
Exceptions overruled; decree affirmed.