Probate Court, Appeal. Res Judicata.
It appearing, at the hearing of a motion to strike out an appearance entered in a probate court opposing a petition for the appointment of an administrator, that the contestant asserted himself to be a party interested in the estate as the son of a deceased brother of the intestate, and that he was the same person who, by final decrees in probate proceedings relating to two other estates, which had been affirmed on appeal to this court, had been adjudged not to be such a son, it was proper for the judge of probate to find and rule that he was not such a son and to allow the motion.
BRALEY, J.
Charles E. Phillips died intestate January 23, 1927, leaving property to be administered, and Eben B. Phillips, a nephew of the decedent, duly applied to the court of probate for appointment as administrator. G.L.c. 193, § 1. A citation to the heirs at law was issued February 1, 1927, and William J. Phillips entered an appearance by his attorney in fact on February 14, 1927, claiming that, being the son of John C. Phillips, a deceased brother of the intestate, he was entitled to be heard on the question whether the petitioner should be appointed. The court on the motion of the petitioner and after hearing adjudged on April 13, 1927, that William J. Phillips was not the son of John C. Phillips, and that his appearance should be stricken out. It is contended by William J. Phillips, who appealed, that the order should be reversed.
The rights of the appellant depended on his kinship to the intestate. It was a question of fact, whether he was the son of John C. Phillips, and, this question having been settled adversely to his claim in Phillips v. Phillips, 230 Mass. 14, where it was directly raised and which decision was followed in Phillips v. Phillips, 241 Mass. 47, the entry must be,
Order affirmed.