162 Mass. 450 | Mass. | 1894
' The estate of Grafton 1ST. Collins, late of Edgar-town, in the county of Dukes County, was represented insolvent by Benjamin G. Collins, the administrator, and Henry Ripley, on September 5, 1890, presented his petition to the Probate Court, representing that he was a creditor of the estate, and praying that the administrator be ordered to file a bond with sufficient sureties, and to collect certain assets of the estate, which consisted of property alleged to have been conveyed by said Grafton N. Collins in his lifetime, in fraud of his creditors. On May 24, 1894, the Probate Court entered a decree that the administrator file a bond with sufficient sureties, and that Ripley be empowered to bring suits to recover said property in the name of the administrator, first giving a bond, with sureties to be approved by the court, conditioned to indemnify the administrator against all costs and damages growing out of said suits. From this decree the administrator appealed to the Supreme Judicial Court. The alleged reason of appeal was that the Probate Court had erred in deciding that Ripley was a creditor of the estate. On motion of the petitioner, and after notice to the administrator,, and a hearing of the parties, a single justice of this court, sitting in equity in Boston in the county of Suffolk, ordered this appeal to be heard in Boston on the second Tuesday of September, 1894, it appearing, as the order recites, that unreasonable delay would result if the case were heard at the regular sitting of the court in Bristol County.” The regular sitting of this court then next to be held by a single justice in Bristol County would not be held until after the regular sitting of the full court for that county; so that, if the case were not heard by a single justice until the regular sitting in that county, and an appeal were taken from his decision to the full court, this appeal would regularly be heard by the full court at its sitting to be held in that county in October, 1895. The single justice heard the appeal in Boston, and on September 12, 1894, entered a decree affirming the decree of the Probate Court, and remanding the cause to that court for further proceedings. From this decree the administrator appealed to the full court. The administrator also excepted to the order of the single justice directing the cause to be heard in Boston. The contention of the appellant is, that it was beyond the power of a justice of this court to
We are of opinion, however, that it is unnecessary to consider what the limits of the power of this court are under the Constitution and the statutes to try actions at common law, either with or without a jury, in counties other than that in which they were or should have been brought. This is not a suit at common law. By the Constitution of Massachusetts, c. 3, art. 5, “ All causes of marriage, divorce, and alimony, and all appeals from the judges of probate, shall be heard and determined by the Governor and Council, until the Legislature shall, by law, make other provision.” Under this provision, the Governor and Council did not sit in the several counties of the Commonwealth. By St. 1783, c. 46, the Legislature made the Supreme Judicial Court the Supreme Court of Probate, and provided for appeals to that court. See Sparhawk v. Sparhawk, 116 Mass. 315. Without citing all the statutes since passed on the subject, the Pub. Sts. c. 156, § 11, relating to probate appeals, provide that “ Appeals and petitions for appeal shall be entered on the same docket with cases in equity, and shall have the same rights as to hearing and determination as such cases.” See Gen. Sts. c. 117, § 14; St. 1859, c. 237, §§ 7, 12. The Pub. Sts. c. 151, § 23, relating to cases in equity, provide that “ A single justice or the full court may, when needful, hear and determine cases pending in a' county other than that in which such justice or court is sitting, or any motion therein. All orders and decrees made on such hearings shall be transmitted to the clerk in the
When the Constitution was adopted, the High Court of Chancery in England did not sit in the several counties of England, and the distribution of the assets of the insolvent estates of deceased persons in England was by a suit in equity. In Massachusetts there is no absolute right to a jury in equity cases or in probate appeals, except as provided for by the Constitution or the statutes ; and this appeal is not within the provisions of the Constitution or of the statutes requiring a jury trial, and none was asked for by either party. We have, therefore, no occasion to consider the scope of St. 1885, c. 384, §§ 2, 3, in common law actions, or even in equity suits or probate appeals, because we have no doubt of the power of a justice of this court to order this appeal to be heard in Boston by virtue of the other provisions of statute we have cited, and of the rules which have been established for discouraging delays and expediting the decision of cases in equity and probate appeals. Pub. Sts. c. 151, § 33. Rule V. in the Order of Business in Suffolk County. Thompson v. Goulding, 5 Allen, 81.
The remaining contention of the appellant is that Ripley was not a creditor of the estate, and therefore not entitled to prosecute the petition. On this question the facts are briefly as follows. On September 1, 1890, the administrator represented the estate insolvent, arid on September 19 two commissioners were duly appointed to receive proof of claims against the estate. They proceeded to perform their duties, and made their return on July 20, 1891. In the return the petitioner is put down as a creditor to the amount of $6,000. On October 11, 1891, the administrator appealed from the allowance of this claim to the Supreme Judicial Court, and this appeal came on to be heard at a regular sitting of this court in Bristol County; the appellant was called, and made default; and the court proceeded to examine the petitioner and his witnesses, and entered a decree that the said Grafton N. Collins, at the time of his decease, was indebted to the petitioner in the sum of $6,000, and interest up to the time of his decease, amounting in all to the sum of
Decree affirmed.