262 Mass. 270 | Mass. | 1928
This is an appeal from a decree of the Probate Court of Suffolk County ordering that an appeal taken by the appellant from a final decree, entered on a petition for instructions as to the distribution of an estate to be made under a will, be dismissed. The judge filed a full report of material facts. The record as first printed contained no report of the evidence. Subsequently there was filed in this court what is termed “addition to record” which contained a part of the evidence given in the Probate Court. The testimony of one material witness, however, was not reported. It is manifest that this record is not an appeal with full report of the evidence under G. L. c. 215, § 12; c. 214, § 24, 25. Romanausky v. Skutulas, 258 Mass. 190.
If it be assumed, but without so deciding, that the “addition to record” is properly before us, there is nothing in it which affords any ground for modifying the report of the material facts found by the judge made under G. L. c. 215, § 11.
These material facts are that the original decree from which the appeal was taken was entered February 24, 1927; the appeal was filed on March 9, 1927. The appellant made no request to the register of probate to prepare the record of the case for entry in the Supreme Judicial Court or to obtain an estimate of the cost thereof until April 1,1927, when her counsel first spoke to him about preparing the record. On April 2,1927, the stenographer was instructed by counsel for the appellant to prepare transcript of all the evidence, which was completed on May 20, 1927. Shortly thereafter this transcript was delivered to the register of probate. On June 6, 1927, the register was prepared to give estimate of cost of printing. On June 7,1927, no deposit had been made with the register to defray the expense of printing the record. On that date decree was entered dismissing the appeal.
The judge found and ruled in substance that there had been no compliance with the statute which requires that the appeal be entered forthwith. G. L. c. 231, §§ 135,144; c. 215,
Decree of June 7, 1927, dismissing appeal affirmed.