290 Mass. 597 | Mass. | 1935
This is an appeal by the respondent from a decree entered upon a petition brought in the Probate Court. The record consists of the petition, the citation and return of service, the appearance of the respondent, the decree and appeal therefrom. The petition recites that a petition has been brought against the respondent under G. L. (Ter. Ed.) c. 215, § 44. That section provides for the examination in writing of a person suspected of having fraudulently received, concealed, embezzled or conveyed away property of a deceased person. Further recitals are that there has been such an examination of the respondent
This petition is not a continuation of the proceedings for examination under G. L. (Ter. Ed.) c. 215, § 44. Those proceedings are for the “purpose of discovery in a summary mode. They are not the foundation of any decree, but are merely subsidiary to some other proceeding, either in the same or some other court.” Martin v. Clapp, 99 Mass. 470, 471. In Selectmen of Boston v. Boylston, 4 Mass. 318, 322-323, it was said concerning procedure under St. 1783, c. 32, § 12, now G. L. (Ter. Ed.) c. 215, § 44, that “it is very clear that the authority of the Court, under that provision, extends only to an examination for the purpose of discovery. No other power is given by the statute; and, in that extent, it is analogous to the power exercised by the Court of Chancery, in England, upon a bill for discovery. The examination is not to be controlled by other evidence. No relief can be granted upon it; the remedy being employed to enable the complainant to bring an action at law, or to furnish evidence in a suit pending.” It is plain that, merely because of said § 44, no jurisdiction is conferred upon probate courts to proceed further against the person examined. Such jurisdiction must depend upon other factors. There are no allegations in the petition that the
Apparently the petition is based upon some theory of equity jurisdiction. See Nelson v. Peterson, 202 Mass. 369; Mitchell v. Weaver, 242 Mass. 331, 335; Buzzell v. Schulz, 273 Mass. 372. There is nothing in the petition or in the citation to indicate that the proceeding was not intended to be in accordance with the equity practice of the probate courts. There was no special order in the citation or otherwise that there would be a hearing immediately on its return. It was provided by the rules of the probate courts then in force that the "day of appearance shall be the return day of the citation, unless the court shall otherwise order; and if the respondent shall not appear and file his answer, plea, or demurrer within fourteen days thereafter, the petition shall be taken for confessed,” and that the "respondent may, at any time before the petition is taken for confessed . . . demur, plead, or answer to the petition;” and that he "shall answer fully, directly and specifically to every material allegation or statement in the petition.” See rules 5, 6 and 4 of the probate equity rules in force at the time of these proceedings.
These rules were authorized by G. L. c. 215, § 30. They were binding upon the judge of the Probate Court. The
Decree reversed.