22 Mass. App. Ct. 340 | Mass. App. Ct. | 1986
Elizabeth H. Darling, an elderly widow, executed a will on October 1, 1979, in which she devised certain real estate to a grandnephew, the plaintiff Edward D. Kent, nominally for his lifetime,
Upon her appeal from the judgment, Mary asserts that various of the findings are erroneous, but she does not come near making such a demonstration. She argues, also, that the judgment ought to fail because the judge adopted many of the findings proposed by the plaintiff and thus, so she contends, did not show himself to be independently in command of the facts. We are satisfied from the record that the contention fails. See Cormier v. Carty, 381 Mass. 234, 236-238 (1980); Lewis v. Emerson, 391 Mass. 517, 524 (1984); Lovett v. Commonwealth, 393 Mass. 444, 446-447 (1984); First Pa. Mortgage Trust v. Dorchester Sav. Bank, 395 Mass. 614, 622 n.12 (1985); Markell v. Sidney B. Pfeifer Foundation, 9 Mass. App. Ct. 412, 414-418 (1980).
Upon oral argument it appeared that Mary was not so much concerned to overthrow the judgment as to use this appeal to get rid of some of the findings. (Indeed, it may be that her final position would to some extent be helped by the establishment of the will.)
It would be a curiously stultifying endeavor to attempt to excise findings from this action No. 1 on a theory that they might become embarrassing to one or another party in an action No. 2 which has yet to come to trial. We may point out, however, that ordinary rules of res judicata tend to provide as much protection to the defendants as they deserve against casual preclusive use of the present findings in the forthcoming litigation. The conventional principle is that stated in Restatement (Second) of Judgments § 27 (1980): for preclusion purposes, an “issue” must have been “actually litigated” and its determination must have been “essential to the judgment. ”
Judgment affirmed.
It is understood that the plaintiff claims the will should be read to convey the fee.
If the will were denied probate, Elizabeth’s estate would presumably go by intestacy and Mary would lose such benefits as might come her way as residuary taker under the will.
Section 27 reads: “When an issue of fact or law is actually litigated and determined by a valid and final judgment, and the determination is essential to the judgment, the determination is conclusive in a subsequent action between the parties, whether on the same or a different claim.”
The sequel was Rudow v. Fogel, 12 Mass. App. Ct. 430 (1981).