This is an appeal from a decree of the Probate Court for Suffolk County allowing the will of Mamie E. Mawson, late of Boston. In the Supreme Judicial Court, on motion of the appellant, issues were framed and the case was sent to the Superior Court, where it was brought before a jury
Exceptions were not filed within the time required by law, R. L. c. 173, § 106, but the time for filing was extended to and including November 23, 1914, on which day the exceptions of the appellant were filed; but no notice of the filing was given to the appellee until the next day, November 24, 1914. De Bang v. Scripture, 168 Mass. 91. On November 25, 1914, the appellant filed a motion requesting an extension of time for the giving of notice of the filing of her exceptions and requesting the court, in the event of the dismissal of her exceptions, to report the case to the full court; and on the same day the appellee filed
On December 8, 1914, after a hearing, the judge of the Superior Court denied the motion of the appellant for an extension of time, allowed the motion of the appellee to dismiss the exceptions and refused to report the case to the full court. The appellant’s exceptions were accordingly dismissed. No appeal from or exception to this decision was taken in the Superior Court. On December 29, 1914, the clerk of that court returned the papers to this court, with his certificate of the proceedings in the Superior Court. At the hearing in the Supreme Judicial Court * upon a motion to enter a final decree, the appellant objected, and for the first time presented her motion for a rehearing, asking that the findings upon the second and third issues be set aside and a new trial be granted on those issues, either in this court or in the Superior Court, because the judge excluded evidence offered by her, refused instructions requested by her, and gave instructions inconsistent with those she had requested. This motion was denied, and interlocutory and final decrees were ordered to be entered.
The motion of the appellant before a justice of the Supreme Judicial Court, at the hearing to enter the proper decrees in the case, was in effect a motion for a new trial. Such a motion must be made in the court where the case is tried. R. L. c. 173, § 112. Coffing v. Dodge, 169 Mass. 459. Manzigian v. Boyajian, 183 Mass. 125. Motions for new trials in probate appeals are governed by the same rules as in suits at common law. Perry v. Shedd, 159 Mass. 200.
But the appellant maintains that the verdict of a jury in a probate appeal is merely to inform the conscience of the court, and that the judge may adopt or disregard it; that the verdict in such a case being advisory, it is not conclusive, as in an action at law, and the court ordering the decree may enter such a decree as it thinks proper, notwithstanding the verdict of the jury. And this is the practice in a number of jurisdictions. See Fletcher, Eq. PI. & Pr. 631, et seq.; but in this Commonwealth the prac
Decree affirmed.
The case was tried in the Superior Court before Brown, J.