Thomson v. Carruth

220 Mass. 77 | Mass. | 1914

Braley, J.

The appeals from the decree of the court of probate brought to this court all questions of fact as well as of law involved in the general question whether the instrument propounded should be allowed in whole or in part as the will of the testator. Old Colony Trust Co. v. Bailey, 202 Mass. 283, 288, 289.

The jury having found under the issues framed that the testator executed the will when he signed his name on the margin of the fifth page and the witnesses under the attestation clause affixed their names, his subsequent signature appearing between the in testimonium and attestation clauses constituted no part of the will. But, as the decree in the Supreme Judicial Court upon appeal as in the Probate Court must follow the allegations of the petition, which asked for the allowance of the will as it appeared on its face, an amendment became necessary before the instrument could be decreed to be the will of the testator. Thomson v. Carruth, 218 Mass. 524.

If after verdict the decree of the Probate Court had been affirmed and the case had been remanded, the amendment would have been made in that court. Crocker v. Crocker, 198 Mass. 401.

The appeal, however, was still pending in the Supreme Judicial Court when the rescript went suggesting an amendment. That court had jurisdiction, therefore, to correct an error in the pleadings by allowing the petitioners to amend the petition in accordance with the evidence and the verdict.

The second signature, as we have said, was affixed after the will had been duly executed and had become a completed instrument; and, although not made by a stranger, it is in the nature of an interpolation, which formed no part of the will itself.

The rulings requested by the appellants were rightly refused and the order allowing the amendment is to stand.

Exceptions overruled.