247 Mass. 92 | Mass. | 1923
The decree appealed from, omitting the caption and the time and place of the sitting of the court, reads: “ On the petition of George W. Johnson of Bridgeport in the State of Connecticut praying that the decree of this court dated March 18, 1921, allowing the will of Anna J. Borden, late of Fall River in said county, deceased, and appointing John A. Kerns executor thereof be vacated. All persons interested having had due notice of said petition, and objection being made and after hearing, it appearing to the court that the petitioner had notice that said instrument was to be offered for probate and without sufficient excuse therefor neglected to enter his appearance on or before the return day and it not appearing that any fraud was practised on the petitioner or on the court and no evidence having been presented which would justify setting aside said
At the conclusion of the voluminous evidence, which is reported, the petitioner presented written requests for rulings and findings of fact. Thereupon the judge, in substance, found that on March 18,1921, the will of Anna J. Borden was allowed by the judge of probate on the testimony of one witness; that no appearance had been entered against the probate of the will; that it appeared to the court that no person interested in the estate intended to object to the probate of the will; that the respondent, John A. Kerns, who presented the'will, had no notice or knowledge that any such person intended to object; that the petitioner for the probate of the will inserted in the petition for the probate of the will, as the heirs at law, the uncle and cousins of the deceased; that the names of the cousins were erroneously inserted, as the uncle was the sole heir and next of kin; that Judge Alger before the probate of said will said to John A. Kerns, the respondent, “You set forth cousins here and there is an uncle . . . the cousins are not heirs, they should not have been set forth,” and that Kerns did not say anything in reply; the judge refused to find, as requested by the petitioner, that “ John A. Kerns did inform the petitioner that all the cousins and he as the only surviving uncle were the heirs at law on March 2,1921, the day of the funeral in Fall River.”
The judge further found that “ on March 1,1921, John A. Kerns obtained the names of the cousins, whose names were inserted in the petition as heirs at law, from Mrs. Mary S. Johnson [¡the wife of a cousin of the testatrix] and Martha Stapleton [a cousin of the testatrix] and he believed that the cousins and the uncle were the heirs at law and so informed Mrs. Mary S. Johnson and she afterwards told the petitioner what Mr. Kerns had said; ” “ that after the funeral the petitioner [sic]
The judge further found that John A. Kerns sent a copy of the citation on the petition for proof of the will to the said George W. Johnson, as ordered; that in the statement given to the newspapers on March 4,1921, by John A. Kerns no mention was made of the fact that an uncle survived the deceased, or that John A. Kerns was the residuary legatee; that the newspapers to which the statement was given were the Fall River Daily Globe and the Fall River Evening News, both published in Fall River. The judge refused to find, as requested, that said publication was published by the said John A. Kerns for the purpose of concealing the fact that there was an uncle surviving, and concealing from the public that Kerns was to be the residuary legatee under the will. The judge found that the publication represented that the only heirs at law were cousins; that said John A. Kerns knew that there was an uncle alive" when he caused to be published the said statement in the said two newspapers.
The judge refused to find that said John A. Kerns in 1918 was told that the late Anna J. Borden used “ dope,” and that the said John A. Kerns said “You did not have to go very far or ask many to find that out,” and found that there was a representation made to the said John A. Kerns atone time that the said Anna J. Borden used dope, but it was not made under such circumstances that he placed great credit upon it, and he made no inquiries or investigation as to the truth or falsity of that representation. He found that the said John A. Kerns was the sole legal adviser of the late Anna. J. Borden from the time of her husband’s death in November, 1917, until the day of her death, except as
He refused to find that the said John A. Kerns did fail to state in the memorandum, drafted by Mm at the request of Anna J. Borden, the relationship of the petitioner to the deceased, in order to conceal from the public the fact that there was an uncle; that the memorandum, Exhibit X, was written on the typewriter by the said John A. Kerns himself, and that the said John A. Kerns did telephone to an attorney at law in order to rewrite said purported will substantially as set forth in the memorandum; and he found in place thereof that the memorandum, ExMbit X, was written on a typewriter by John A. Kerns after consultation with Anna J. Borden, and that the said John A. Kerns stated that he could not write the will himself and telephoned to a well known and reputable lawyer in Fall River, making an appointment for Anna J. Borden to see him for the purpose of having her will drawn; that he gave the memorandum to Mrs. Borden to take to their lawyer, who after consultation "with Anna J. Borden drew the will substantially in accordance with the memorandum as to all important items.
Upon the above facts the petitioner contends that such fraud in law upon the judge who allowed the will appears, as required that the court on Ms petition should have revoked the decree allowing the "will for probate. In the order followed in the brief of the petitioner those facts succinctly stated are: (a) that Kerns on March 18, 1921,
The petitioner argues that the nondisclosure of the facts enumerated in (a), (b), (c) and (d) of his brief constitutes a fraud upon the court because, as he conceives, the court, had it knowledge of such facts, “ would have insisted that the said George W. Johnson be correctly informed of his true status, by registered letter, or by such other method as the court would deem proper.”
The above facts do not find any intentional nondisclosure by Kerns to the judge of the fact that, in mistake of the law, he had innocently misstated that the uncle and cousins were heirs at law of Anna J. Borden, and he had inserted their names and relationships to the deceased, and the name and relation of the uncle, in the petition for probate. In addition, the judge found that Kerns sent to the petitioner, an heir at law and next of kin named in the petition, a citation on the petition for proof of the will; that the petitioner knew there was a will; that he heard it read immediately after the funeral and had notice that the will was to be offered
It results that the decree must be affirmed.
So ordered.
The testimony shows that it was Mr. Kerns who thus read the will.