EDWIN B. HALE, trustee, vs. CHARLES BLANCHARD.

Probate Court, Jurisdiction, Appeal. Equity Jurisdiction, Mistake. Supreme Judicial Court, Briefs, Record.

Upon an appeal to this court from a final decree of the Probate Court, where there is no report of evidence or of facts found by the trial judge, nothing is open but the question, whether the Probate Court had jurisdiction and power to make the decree upon any evidence that might have been adduced under the Petition.

In a petition in the Probate Court by a trustee under a will, the petitioner alleged in substance that through a mistake of the parties certain land was omitted from that described in a former petition filed by him for the sale of land, from a

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decree issued thereon and from a deed made to carry out a sale made in accordance with that decree, and that the price paid by the purchaser was full, fair and reasonable for the entire tract meant to be sold. The prayer of the petition was for leave to release to the purchaser "any vested, contingent, or possible right or interest in" the land omitted from the description in the former petition, decree and deed. Upon an appeal from a decree granting the petition, there was no report of evidence and no findings of facts by the judge of probate. Held, that

(1) If there was evidence to support the allegations of the petition, it was plain that there was such mistake in the earlier deed and such part performance of the contract of purchase as would entitle the grantee to relief in equity;

(2) It not appearing on the face of the record that there was want of equity in the bill, and the decree conforming to the frame of the bill, the decree was affirmed.

This court cannot consider facts printed in a brief, which are there stated to have appeared at the hearing before the tribunal whose rulings are being reviewed but which are not a part of the record transmitted from that tribunal.

PETITION, filed in the Probate Court for the county of Middlesex on February 8, 1921, by the trustee under the will of Charles H. Blanchard, late of Lexington, for leave to release to Walter K. Hutchinson "any vested, contingent, or possible right or interest in any and all land in said Lexington and said Arlington to which he had title as trustee as aforesaid, expressly including" certain land specifically described, which the petitioner alleged was omitted by mistake from a former petition for leave to sell land to Hutchinson, from the decree granting that petition and from the deed of the trustee made in accordance therewith.

The petition was heard by Lawton, J., no commissioner having been appointed to take the testimony. By order of the judge, a decree was entered granting the petition. An heir of the testator appealed. There was no report of facts by the trial judge.

G. L. c. 204, § 4, reads as follows: "An executor, administrator, guardian, conservator or trustee may, after the notice required upon a petition by him for a license to sell real estate, be authorized by the Probate Court to release and discharge, upon such terms and conditions as may appear to be proper, a vested, contingent or possible right or interest, if such release or discharge appears to be for the benefit of the person or estate which he represents."

C. Blanchard, appellant, pro se.

J. G. Brackett, for the appellee.