Probate Court, Jurisdiction, Issues for the jury. Will, Validity.
In a petition for the probate of the will of one who died domiciled in New Bedford, twenty-four next of kin were named, of whom eight were alleged to reside in this Commonwealth, one in the State of Rhode Island, five in the Azores, and ten in the State of California. A citation was issued, which was returnable sixteen days after the date of the filing of the petition and was ordered to be published in a New Bedford newspaper and by mailing or delivering copy to all known persons interested in the estate. The return showed service by publication and mailing. Held, that, even though none of the heirs at law resident outside of this Commonwealth appeared and even though they in truth may have been unaware of the proceeding, nevertheless the general notice was sufficient to give the court jurisdiction of the petition and to justify a final decree.
The settlement of estates of deceased residents of this Commonwealth ought to go forward to a conclusion as speedily as is reasonably possible.
Upon the return day of the citation upon the petition above described, the only appearance of a contestant was by a resident of New Bedford, who moved for jury issues. His motion was denied and he appealed. Before his appeal was heard in this court, appearances as contestants were entered by one of the next of kin who was a resident of Providence in the State of Rhode Island and for next of kin residing in the Azores, who also filed a motion for jury issues. At the hearing by this court of the appeal already filed, the appellant moved for a continuance in order that the motion of the later contestants might be heard before disposition of the pending appeal. The motion was denied and a rescript was issued affirming the decree denying the first motion for jury issues. The second motion for jury issues then was heard in the Probate Court, it being agreed that the judge might consider and compare the statements of evidence made at the hearing of the two motions, and the motion was denied. The second group of contestants appealed. Held, that
(1) Only extraordinary circumstances would justify a framing of issues on the second motion after the affirmation of the decree denying the first motion;
(2) No such extraordinary circumstances appeared.
RUGG, C.J.
This petition for the allowance of the will of Antone L. Sylvia, late of New Bedford, was filed on December 1, 1920. The petition sets forth twenty-four heirs at law of the deceased of whom eight are alleged to reside in this Commonwealth, one in the State of Rhode Island, five in the Azores, and ten in the State of California. The town of residence of each is given. Citation on the petition was made returnable on December 17, 1920, and ordered to be published in a New Bedford newspaper and by mailing or delivering copy to all known persons interested in the estate. The return showed service by publication and mailing. Some of the heirs at law resident in Massachusetts appeared seasonably and opposed the allowance of the will. Even though none of the heirs at law resident outside of this Commonwealth appeared and even though they in truth may have been unaware of the proceeding, nevertheless the general notice was sufficient to give the court jurisdiction of the petition and to justify a final decree. Bonnemort v. Gill, 167 Mass. 338. Wright v. Macomber, 239 Mass. 98, 102. Motion was made by certain of the contestants, who appeared seasonably, that issues be framed for trial by jury. That motion was denied by the Probate Court. That decision was upheld in Fuller v. Sylvia, 240 Mass. 49, which was argued in October, 1921, and decided the following month. The heir at law resident in Rhode Island and those in the Azores filed an appearance in October, 1921, and in their own behalf requested that issues be framed for a jury trial.
The settlement of estates of deceased residents of this Commonwealth ought to go forward to a conclusion as speedily as is reasonably possible. That is of public concern in the interest of creditors, of those entitled to share in the estate and of the Commonwealth as possibly entitled to inheritance taxes. Every practical consideration is against delay. Riddell v. Fuhrman, 233 Mass. 69, 71.
In the case at bar the question whether issues should be framed for trial by jury was presented in behalf of an heir who seasonably appeared to contest the will. It was decided adversely to the contestant. Most extraordinary circumstances would be required to justify the framing of issues at a later time at the request of other contestants. The case at bar falls far short of showing sound ground for the granting of such issues. The judge of the Probate Court dealt rightly with the matter.
Decree denying motion affirmed.