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Upon an appeal from a decree allowing a will, where the question is as to the due execution of such will, devisees named therein have a right to appear as parties to establish it, although an administrator with the will annexed has been appointed, and appears for the same purpose.
Eliot v. Eliot, 10 Allen 357.
It seems that one, to whom money has been paid under a decree of the probate court, cannot after such payment appeal from such decree. Hale v. Hale, 1 Gray 518, 522.
Sect. 10. “His reasons of appeal.” The appellant is restricted to the points specified in his reasons of appeal, but not to the same arguments, views, or evidence which were presented before the court of probate. Boynton v. Dyer, 18 Pick. 1, 4.
SECT. 11. If one has received money paid him pursuant to a decree of the probate court, that fact will be a sufficient reason for refusing to grant his petition under this section. Hale v. Hale, 1 Gray 518, 522.
“ Without default on his part." See Wright v. Wright, 13 Allen 207, 210.
An heir who has notice of an appeal by another heir, but takes no steps towards prosecuting such appeal, which is afterwards compromised without his knowledge and a decree entered accordingly, is not sufficiently “ without default” to be able to maintain a petition for leave to enter a new appeal in his own name. Kent v. Dunham, 14 Gray 279, 281.
When leave to enter an appeal is granted under this section, the entry of the appeal should be made at the term at which the leave is granted. Robinson v. Durfee, 7 Allen 242.
Sect. 15. Proceedings of probate courts not to be affected by any appeal, provided decree or order confirmed, and provided proceedings stayed during pendency of appeal. St. 1860,
When a decree appointing an administrator is appealed from, the authority of such administrator is thereby suspended. Arnold v. Sabin, 4 Cush. 46, 47.
As to the power of the probate court to revoke or correct its own decrees, see Waters v. Stickney, 12 Allen 1, and cases there cited, - also Pettee v. Wilmarth, 5 Allen 144.
Registers may at any time receive and file petitions and applications, and may issue orders of notice and citations, but when the judge deems such notice insufficient, he may order further notice. St. 1863, c. 156. (St. 1860, c. 163.)
By St. 1864, c. 265, certain probate notices were required to be sent by mail, but by St. 1865, c. 254, that act was repealed, and it was provided that “no right, title, or proceeding shall be affected by reason of any failure or omission heretofore to comply with the requirements thereof."
SECT. 19. Pursuant to this section certain forms for proceedings in the probate courts were framed by “ Judges John Wells and William A. Richardson, a committee of the judges of the probate courts,” which forms were approved by the supreme court, which, on Jan. 15, 1862, passed an order that, " to secure regularity and uniformity in the proceedings of the probate courts in the several counties,” — “copies of all said forms be filed in this court and recognized as standard forms to be adopted and used in all the probate courts of this commonwealth.”
Sect. 21. Certain discharges of claims against, and acknowledgments of performance of duty or payment of money by executors, administrators, guardians, or trustees to be recorded, indexed, &c. St. 1864, c. 93.
As to the early practice in this state with regard to the recording of decrees, orders, &c., see Marcy v. Marcy, 6 Met. 360, 368.
SECT. 22. As to the law upon the subject of this section prior to statute, see Hathaway v. Clark, 5 Pick. 490.
Sect. 25. As to the general practice of the supreme court as to allowance of costs in cases of contested wills, see Woodbury v. Obear, 7 Gray 467, 472.- Edwards v. Ela, 5 Allen 87, 89.
Sessions of the Courts. SECT. 36. “Probate courts, in addition to the terms now allowed by law, may transact any business within their jurisdiction, when due notice has been given to all parties interested; or, when no notice is required, on any day when courts may lawfully be held.” St. 1869, c. 424.
For the times of holding courts for Middlesex, see St. 1868, c. 213. (Prior changes, St. 1866, c. 116. - St. 1867, c. 220.)
For the times of holding courts for Worcester, see St. 1869,
Hampshire. Court to be held at Williamsburg, instead of Chesterfield, on third Tuesdays of May and October. St. 1866,
Hampden. For times of holding courts in this county, see St. 1865, c. 123.
Franklin. No courts to he held at Locks' Village, in Shutesbury, or at Charlemont, but additional courts to be held at Orange on third Tuesday in June, and at Shelburne Falls on fourth Tuesday in May. St. 1867, c. 249.
Berkshire. For times of holding courts in this county, see St. 1869, c. 60. (Prior changes, St. 1868, c. 325, s. 2. — St. 1868, c. 329.)
Norfolk. For times of holding courts in this county, see St. 1868, c. 214.
Bristol. For times of holding courts in this county, see St. 1862, c. 5.
Plymouth. For times of holding courts in this county, see St. 1863, c. 245, as amended by St. 1868, c. 169.
Barnstable. For the times of holding courts in this county, see St. 1869, c. 277. (Prior alterations by St. 1867, c. 307.St. 1868, c. 196.)
Dukes County. For the times of holding courts in this county, see St. 1862, c. 114.
Nantucket. For the times of holding courts in this county, see St. 1863, c. 146.
OF COURTS OF INSOLVENCY.
No notes upon this chapter are given, as the insolvent laws of Massachusetts have been superseded by the United States bankruptcy law (U. S. St. 1867, c. 176). That statute superseded the state law on June 1st, 1867, so that no proceedings by or against a debtor could be instituted under the latter on or after that date. Day v. Bardwell, 97 Mass. 246, 250.
OF JUDGES AND REGISTERS OF PROBATE AND INSOLVENCY.
Judges. A judge of probate and insolvency has no authority to act as such out of his county, except in the cases provided for in the statutes, or when the act to be done is substantially ministerial in its nature. Lee v. Wells, 15 Gray 459.
SECT. 4. “No judge of probate and insolvency shall be disqualified from acting in any case by reason of interest, unless such interest is direct, and to the amount of one hundred dollars of principal claimed by or against him, nor until the same appears of record in the case.” St. 1860, c. 145.
It was formerly held that, under St. 1817, c. 190, s. 5, and Rev. St. c. 83, s. 15, if a judge of probate was interested in an estate, as by having a valid claim against it, all proceedings before him regarding such estate were void for want of jurisdiction, even though he had determined in his own mind not to enforce his claim, and though no objection to his assuming jurisdiction was made at the time. Cottle, Appellant, 5 Pick. 483. - Coffin v. Cottle, 9 Pick. 287. --- Sigourney v. Sibley, 21 Pick. 101. — Gay v. Minot, 3 Cush. 352, 354. — Sigourney v. Sibley, 22 Pick. 507.
By St. 1851, c. 253, however, it was provided that a judge of probate should not be disqualified by interest, unless it exceeded one hundred dollars; and by St. 1856, c. 268, it was further provided that such judge should not be rendered “incompetent, by reason of interest, to act in the settlement of the estates of persons deceased, unless the principal sum due or claimed, without interest, should exceed one hundred dollars."
The fact that a judge has been appointed executor of the will of a person to whom a devise has been made in the will of another, has been held to make him “interested” in such latter will. Bacon, Appellant, 7 Gray 391. But quære, whether such interest would be considered to be “ direct,” under St. 1860, c. 145.
A judge, who acts as attorney for one interested in an estate, does not thereby become himself interested in such estate. Cottle, Appellant, 5 Pick. 483.
Nor is a judge, who is an inhabitant of a town for the benefit of the poor in which a bequest to trustees has been made in a will, to be deemed to be interested in such will. Northampton v. Smith, 11 Met. 390. This case contains a general consideration of the nature of the interest which disqualifies a judge of probate from acting. By Gen. St. c. 122, s. 13, it is provided that no person shall be disqualified from acting as judge “ in a suit or proceeding in which any city or town is interested, by reason of his interest as an inhabitant thereof."
“ Or if there is a vacancy in any county." Prior to the General Statutes the existence of a vacancy did not authorize the transfer of a case to another county. Grafton Bank v. Bickford, 13 Gray 564.
SECT. 6. It seems that, even if a judge allows himself to be retained or employed as counsel contrary to this section, it will not oust him of his jurisdiction, nor render his acts invalid. Cottle, Appellant, 5 Pick. 483, 484.