94 Mass. 1 | Mass. | 1866
The decision of this case involves an interesting question of the extent of the powers of courts of probate, upon which there has been no express adjudication in this commonwealth, but to which a consideration of the precedents and authorities on the subject furnishes a satisfactory answer.
The jurisdiction over the probate of wills and granting administrations is peculiar. It was derived from the civil law through the ecclesiastical courts of England, and was granted by the Province Chárter to the governor and council, who appointed judges of probate in the different counties as their delegates, from whom an appeal lay to them; and this appellate power was continued in the governor and council after the establishment of the State Constitution until the end of the Revolution, when it was transferred to this court, still however keeping the probate jurisdiction distinct from those of common law and equity. Anc. Chart. 32. Governor Pownall’s Message to his Council in 1760, Quincy, 573. Constitution of Massachusetts, c. 3, § 5. St. 1783, c. 46. Peters v. Peters, 8 Cush. 540-542. The jurisdiction of courts of probate in Massachusetts, differing in this respect from those of England and of some other states, includes wills of real estate as well as of personal property. Anc. Chart. 32. Laughton v. Atkins, 1 Pick. 549, and cases cited. Rev. Sts. c. 62, § 32, and commissioners’ note. Gen. Sts. c. 92, § 38.
Decrees of probate courts in matters of probate, within the authority conferred upon them by law, are'conclusive upon the courts of common law, and cannot be reversed by writ of error or certiorari. Dublin v. Chadbourn, 16 Mass. 441. Smith v. Rice, 11 Mass. 513. Peters v. Peters, 8 Cush. 529. Nor can they be set aside in equity, even for fraud. Kerrich v. Bransby, 7 Bro. P. C. (2d ed.) 437; S. C. nom. Herridge v. Bransby, 5 Lee, 563. Barnesly v. Pou el, 1 Ves. Sen. 287. Allen v. Macpherson, 1 Phillips R. 145, 146; S. C. 1 H. L. Cas. 211, 226
By the practice of the English ecclesiastical courts, a will may be proved either in common form, ex parte, upon being presented by the executor; or in solemn form, after notice to all parties interested — which last accords with our practice in all cases of probate of wills. When a will is proved in common form, the court may, upon the subsequent application of any party interested and notice to the executor, at any time within thirty years, order that will, or a later one, if produced, to be proved in solemn form. 1 Williams on Executors, (5th Amer. ed.) 282, 300, 508. Case of Executors, Hetley, 77. Ridgway v. Abington, 3 Swab. & Tristr. 3. And probate of a will, granted upon the mistaken supposition that the testator is dead, may be revoked and cancelled by the court which granted it. Goods of Napier, 1 Phillim. R. 83.
Even when a will is proved in solemn form, it is within the jurisdiction of the court, for sufficient cause shown, to revoke the probate. The English authorities recognize, as sufficient causes of revocation, forgery of the will, fraud in obtaining probate, neglect or mismanagement in conducting the suit, or the production of a later will.
The courts of common law formerly went so far as to hold that the forgery of a will which' had been admitted to probate could not be made the ground of an indictment until the probate had been revoked-; but according to later and sounder decisions the probate, though conclusive, until set aside, of the disposition of the property, does not protect the forger from punishment. Rex v. Vincent, 1 Stra. 481. Ramsbottom’s case, 1 Leach, (4th ed.) 25, note. Rex v. Buttery, Russ. & Ry. 342 Rex v. Gibson, lb. 343, note.
In Barnesly v. Bowel, 1 Ves. Sen. 254, a will of personalty which had been proved in the ecclesiastical court, (evidently in
In a proceeding in the ecclesiastical court by the daughter of a deceased person, after citation to an executor named in a will of his, for letters of administration with that will annexed in the event of the executor’s declining to take probate, attorneys intervened in behalf of the executrix named in a later will, then residing abroad, propounded this will, and prayed letters of administration with this will annexed to be granted to them in her behalf; but afterwards withdrew from the suit, and letters of administration with the first will annexed were thereupon decreed to the daughter. Upon evidence that the attorneys withdrew from that suit for want of funds and defect in their power of attorney, and because the daughter’s husband assured them that he could prove the later will to be a forgery, Sir John Nicholl held that the executrix named in the second will, and a fortiori any other party interested under it, was not barred from re-propounding it; and said, « It must be remembered that there has still been no sentence, either for or against the validity of either will; and, although in ordinary cases, when the parties, being present, declare that they proceed no further, or duly authorize a practitioner to take that step for them, the court, as far as it legally can, will hold them bound; yet it would be unjust and inequitable not to make great allowance in this respect for a case circumstanced as the present is.” Trower v. Cox, 1 Addams, 219. And in Hayle v. Hasted, 1 Curt. Eccl. 240, Sir
In Wilkinson v. Robinson, 14 Jur. 72, the same judge decreed • probate of a later will, notwithstanding an earlier will had already been admitted to probate and the executrix named therein was out of the jurisdiction and could not be cited. All the text books most relied on as guides in matters of practice of this kind state that probate of a will, either in common or solemn form, may be revoked on evidence of fraud in the proof, or of a later will. Wentw. Off. Ex. 48. Toller, 73, 74. 1 Williams on Executors, 399, 508.
In the analogous case of letters of administration, it is now Well settled in England, and in many of the United States, that they may be revoked for sufficient cause by the court which granted them. 1 Williams on Executors, 509-512, 521, 524,
notes. The English court of common pleas recently refused to stay an action at law by an administrator appointed by the ecclesiastical court, on affidavits that the deceased had left a will appointing an executor; Mr. Justice Williams saying, “ Where letters of administration have been improperly obtained or improvidently granted, the proper and only course is, to go to the ecclesiastical court to get them revoked.” Prosser v. Wagner 1 C. B. (N. S.) 295.
Beside the opportunity of obtaining revocation of a decree of the ecclesiastical court in certain cases, the law of England gave a right of appeal in ev.ery case; and after a decision in the highest court, the king in the discretionary exercise of his prerogative, upon the advice of the chancellor, might grant a commission of review. 1 Williams on Executors, 493 Sf seq. Matthews v. Warner, 4 Ves. 186-211, & notes; S. C. 5 Ves. 23. But the present existence here of such a discretionary powen either in the executive or the legislature, (though not unlike that of granting new trials and reviews in actions at law, which was
The records of the governor and council, sitting in a judicial capacity as the supreme court of probate of the Province, throw much light upon the' practical construction of the extent of the power of revocation incidental to the probate jurisdiction, and show that such a power was frequently exercised in cases of fraud or mistake, whether in every instance wisely we need not inquire. A few examples, out of many which might be selected, will afford sufficient evidence that the power was adopted, used and approved in the Province, and usually practised on in the courts of law, and therefore continued to exist after the adoption of the Constitution, unless modified or taken away by the legislature. Constitution of Massachusetts, c. 6, art. 6.
In 1705, upon a hearing before the governor and council of 61 a challenge made ” on behalf of Anthony Penn to an instrument which had been admitted to probate in the county court of Suffolk in 1688-89 as the will of his uncle, William Penn, of Braintree, the question was put “ whether there do appear in the law a forgery or perjury to void the will,” and resolved in the negative. But upon a new petition in 1716 by the same nephew and by a niece of the testator, alleging that after the probate it was declared by one of the subscribing witnesses to the will that it was forged and contrived after the testator’s decease by the person who presented it for probate, the governor and council, after notice and hearing, made a final decree declaring the will null and void. Council Rec. 1705, fol. 176; 1716, fol. 465, 466, 477.
In 1725 Judge Samuel Sewall, (then chief justice of the Province,) as judge of probate in Suffolk, revoked letters of administration which he had previously granted on the estate of Benjamin Bates to his son of the same name, and granted
In 1757 a division of the estate of Phinehas Adams among his heirs by commissioners appointed by Judge Hutchinson as judge of probate was returned to the probate court of Suffolk county ; but the fees thereon not being paid, the usual form of acceptance was not written upon it by the register, nor signed by the judge, nor the return recorded, but it was filed with other papers, and forgotten. The parties, supposing the return to be accepted in form; entered upon, improved, and made conveyance^ of the parts respectively assigned to them. In 1762 Judge Hutchinson (who was then also lieutenant governor and chief justice of the Province, as well as judge of probate for Suffolk,) discovered the mistake, and after notice and hearing entered and signed an acceptance of the return nunc pro tune, and submitted
In a subsequent case, both of the executors named in the will of William Brown, Jr. died after accepting the trust, the survivor having appointed Joseph Sherburne his executor. Yet the judge of probate in Essex appointed John Brown administrator de bonis non with the will annexed of William. Sherburne appealed to the supreme court of probate, who in 1766, after argument by counsel, and against the opinion, though with the final concurrence, of Governor Bernard, (who had himself been a deputy registrar of one of the ecclesiastical 'courts in England,) decreed that the administration be granted to Sherburne, and that upon his giving bond to the supreme court of probate for the performance of his trust, and taking out letters of administration, the decree of the judge of probate be reversed and the letters granted by him revoked. Sherburne, by writing filed in the supreme court of probate, declared himself ready to give such a bond, but apparently never gave one. Upon a new petition filed by Sherburne in 1771, after Judge Hutchinson had become governor, the supreme court of probate, after notice to John Brown, ordered its own decree to be set aside, and the decree of the judge of probate reversed unconditionally; upon the ground that the petitioner as executor of the surviving executor was by law executor of the first testator. Supr. Prob. Rec. 1766-71, fol. 46-48, 80, 81, and papers on file. That rule of the common law was abolished here after the Revolution. St. 1783, c. 24, § 19. Rev. Sts. c. 63, § 10. Gen. Sts. c. 93, § 9.
The authority of the probate court to revoke its own decrees is expressly recognized and declared by the statutes of the Commonwealth in some cases. By St. 1817, c. 190, reenacted in
In Clark v. Wright, 3 Pick. 67, in which a will alone had been admitted to probate in the court below, from which a codicil had been fraudulently torn off, Chief Justice Parker said, “ The court have no doubt that the codicil may and ought to be proved. It will be for the party claiming under it to consider whether he will make application here, or before the judge of probate, to have it allowed.” As that case arose on appeal from the original probate, the codicil was allowed upon petition to this court in the same cause, so that it became unnecessary to consider the extent of the power of the probate court upon a new application. The final decree indeed affirmed the decree below which had admitted the will to probate, and then proceeded to declare the codicil also proved; 3 Pick. 69, note ;' but probate decrees usually allow a will and codicil as distinct instruments, and the fact of their being such may affect their construction. See Weddall v. Nixon, 17 Beav. 166; Goods of Greig, Law Rep. 1 P. & D. 72; Baillie v. Butterfield, 1 Cox Ch, 392. In Newman v. Jenkins, 10 Pick. 516, this court said, “ Sc long as the letters of administration stand u are called, they are
In Stetson v. Bass, 9 Pick. 30, Mr. Justice Wilde, delivering the opinion of the court, said, “ We think there can be no doubt of the right and authority of a judge of probate to open an account settled, for the purpose of correcting a manifest mistake. In the proceedings of all courts errors and mistakes will occur, and frequently without the fault of either party, and justice requires that some method should be provided for the correction of such errors and mistakes, in whatever court they may occur. -In courts of common law jurisdiction the remedy is by writ of error, motion for new trial, or application for a writ of review; but these remedies are not applicable to the proceedings of a court of probate. In that court, when a mistake is made in the settlement of an account, the course is to apply to the judge of probate for the correction of the mistake, by petition, or to state the amount claimed in a new account; unless when the mistake is discovered the party has a right of appeal, by which it may be corrected in this court. This practice seems to be well settled, and in several cases has received the sanction of this court. It is indeed essentially necessary for the furtherance of justice, and ought not to be too strictly .limited,” The authority of courts of probate to correct errors in their decrees on administration accounts, even when in terms final, upon clear proof of fraud or mistake in a point not once actually presented" and passed upon, has been repeatedly sustained by this court and by the highest courts of Vermont and New York, and is now affirmed in this state by statute. Field v. Hitchcock, 14 Pick. 405. Boynton v. Dyer, 18 Pick. 5. Adams v. Adams, 21 Verm. 166, 167, and cases cited. Pew v. Hastings, 1 Barb. Ch. 452. Sipperly v. Baucus, 24 N. Y. 46. Rev. Sts. c. 67, § 10. Gen. Sts. c. 98, § 12. A court of probate has no more power by a decree establishing one testamentary instrument to preclude
In none of the judgments of this court, to which the appellant has referred, was it necessary to pass upon the power of the court of probate to revoke or correct its own decrees.
The decision and opinion in Peters v. Peters, 8 Cush, 529, were limited to the question of the appellate powers of this court, either as a court of probate, or as a court of common law, in probate matters. In the very passage cited for the appellant, Chief Justice Shaw limited his statement accordingly, saying, “ We believe that when the legislature vested this jurisdiction in judges of probate, and created a supreme court of probate with a full appellate jurisdiction, allowing an appeal within' a short limited time, with a power in this court to enlarge that time in case of accident or mistake, they did all they intended to do, in providing for the revision of decrees in probate matters by appeal.” 8 Cush. 542, 543. The chief justice had already said at the outset of his elaborate discussion of that question, “ It may be proper to premise that the peculiar and appropriate jurisdiction of the probate courts in this commonwealth, embracing the probate of wills, granting administrations, and their incidents, is precisely that which was and still is exercised by the ecclesiastical courts of Great Britain.” 8 Cush. 536.
In Dublin v. Chadbourn, 16 Mass. 433, the only point decided was that the decree of a probate court upon the probate of a will was conclusive in an action at law. The case of Crippen v. Dexter, 13 Gray, 330, involved only the conclusiveness of the decree of a probate court of another state upon the validity of a Will, on a subsequent application to prove the will in this state; and the mention of the importance of making proof of a will, once for all, and for all purposes, inasmuch as it determines the condition of a deceased person’s estate, and whether it must be settled as an estate testate or intestate — though showing strong ground for holding the probate of a will in one court to be
The cases of White v. Clapp, 8 Met. 365, and Jenks v. Howland, 3 Gray, 536, touched only the point that decrees of the probate court in the partition of real estate, of which it had jurisdiction by statute, but in which it had exceeded its powers, might be treated as void, and no bar to a writ of entry or a new petition for partition. In Jochumsen v. Suffolk Savings Bank, 3 Allen, 87, the grant of administration on the estate of a living person was held to be beyond the jurisdiction of the probate court, and not binding on him in an action at law, as was fully demonstrated on principle and authority; and the statement on page 95, that the only opportunity for revising or modifying a decree of the court of probate was by appeal within thirty days, or petition to this court for leave to appeal within one year, was not necessary to the decision.
The dictum of Chief Justice Marshall in Griffith v. Frazier, 8 Cranch, 25, that “ letters testamentary, when once granted, are not revocable by the ordinary,” must be applied to the case before him, in which the only ground alleged for the appointment by the ordinary in South Carolina of an administrator de bonis non was the executor’s absence from the state, which had been held by the highest court of that state to be no sufficient ground for revoking the letters testamentary; and if understood as laying down a universal rule, is inconsistent with subsequent judgments
The authority of courts of probate in this respect has been fully sustained in the courts of many states. In Bowen v. Johnson, 5 R. I. 119, 120, the supreme court of Rhode Island held that the power to revoke a probate once granted, although nowhere expressly recognized in the statutes of that state, was a just and necessary power to be implied from the statute conferring general authority to “ take the probate of wills and grant administration on the estates of deceased persons,” and might be exercised incidentally to an application for the probafe of a later will. In Muir v. Trustees of Orphan House, 3 Barb. Ch. 481, Chancellor Walworth, exercising an appellate probate jurisdiction, said, “ The probate of a will of personal property, whether such probate was obtained by a summary or a plenary proceeding, if granted by the proper testamentary court, is conclusive evidence of the due execution of such will, until such probate has been called in or annulled by such court, or has been reversed on appeal to the proper tribunal ” — thus recognizing the power of the surrogate to call in or annul the probate, notwithstanding that by the statutes of that state (as by our own) every will was proved in solemn form, after citation to all parties interested; and that the next of kin, if they had nof appeared and contested the will upon the probate thereof, might come in and do so within one year. The decree of the judge of probate in the case before us is very like one passed by Mr. Surrogate Bradford in the corresponding court for the county of New York, in Campbell v. Logan, 2 Bradf. 90, allowing a codicil to be presented for probate, after the will had been established and allowed on a previous day, and, upon due proof, to be admitted to probate as together with the will constituting the last will and testament of the deceased. The courts of appeals of Maryland and Virginia have held that, notwithstanding ary
In the face of these authorities it is impossible to deny the power of a court of probate to approve a subsequent will or codicil, after admitting to probate an earlier will by a decree the time of appealing from which is past; or to correct errors arising out of fraud or mistake in its own decrees. This power does not- make the decree of a court of probate less conclusive in any other court, or in any way impair the probate jurisdiction; but renders that jurisdiction more complete and effectual, and by enabling a court of probate to correct mistakes and supply defects in its own decrees, better entitles them to be deemed conclusive upon other courts. There is no reason to apprehend that such a power may be unjustly exercised. It is vested in the same court which is intrusted with the original jurisdiction over all probates and administrations. No decree admitting a later instrument to probate, or modifying or revoking a probate already granted, can be made without notice to all parties interested; every party aggrieved by the action of the probate court has the right of appeal to this court; and an application of this nature, when one will has’ already been proved, would never be granted except upon the clearest evidence. The new decree would not neeessarilv avoid payments made or acts done under the old decree while it remained unrevoked. Allen v. Dunlas, 3 T. R. 125. Appeal of Peebles, 15 S. & R. 39. Kittredge v. Folsom, 8 N. H. 98. Stone v. Peasley’s Estate, 28 Verm. 720. I Williams on Executors, 520, 522.
The will and codicil were both executed and attested according to law. No fraud is shown in either party. Nor can it be said that either has been guilty of such want of diligence as should forfeit any rights which that party has or represents. The executor may well have been misled by the letters testamentary issued to him under the seal of the probate court, annexed to which was a copy of the codicil as well as of the will; and until the death of the widow and tenant for life there was no difference between the will and the codicil in the disposition of the estate. On the other hand, the descendants entitled m remainder under the will would naturally rely upon the record of the probate court, on which the codicil did not appear. That record (as well as the facts proved at the hearing, which would hardly be admissible if they contradicted it,) shows that the codicil was not brought to the notice of the judge of probate when he approved the will. The mistake may have been occasioned by inattention or oversight of the counsel or the testifying witness, or possibly of thé judge; but the delay in discovering it is fairly attributable to the carelessness of the register in annexing a copy of the unproved codicil to the letters testamentary.
This mistake cannot be corrected by any proceeding at common law or in equity. The time for appealing from the first decree, approving the will, is long since past. This court has no original probate jurisdiction, and in the exercise of its appellate jurisdiction from the probate court can only make such decrees as that court should have made. Gen. Sts. c. 117, §§ 7, 8,16. Grinnell v. Baxter, 17 Pick. 383. Unless therefore the last decree of the judge of probate, approving the codicil, can be sustained, the parties claiming under the codicil are without remedy.
If the codicil had been on a separate paper, not known to the parties at the time of the probate of the will, but now recently discovered, there could be no doubt of the power and the duty of the probate court to admit it to probate. The fact that it is
The lapse of time since the death of the testator and the probate of the will should lead the court closely to scrutinize the evidence offered, but is no positive bar. If no will had yet been proved, the lapse of time would not prevent both will and codicil from being proved now. The fact that a will has been already proved affords no reason for imposing stricter limitations upon the proof of a codicil, whether the omission to prove it sooner has been occasioned by ignorance of its existence, by fraudulent suppression of it, or by an innocent but mistaken belief that it has been already proved. It would be peculiarly unjust to make any difference in this case on account of the former probate of the will, inasmuch as that will gave the testator’s children after the death of his widow the same interest in the land which they would have had if he had died intestate, and they would therefore, according to a familiar rule of law, take the estate as his heirs and not by virtue of the will. Ellis v. Page, 7 Cush. 161. Sedgwick v. Minot, 6 Allen, 171.
We are therefore satisfied that the decree of the judge of probate, now appealed from, is correct in principle, and according to precedent. But as the case involves an important question of law, upon which the appellant might reasonably desire the opinion of "this court as the supreme court of probate, the common rule in probate causes must be followed, and no costs allowed to either party. Osgood v. Breed, 12 Mass. 536, Woodbury v. Obear, 7 Gray, 472. Decree affirmed.
