Home EMIL A. UNTERSEE, executor, vs. MAXIMILIAN UNTERSEE & others.

299 Mass. 425

October 8, 1937 - February 7, 1938

Court Below: Probate Court, Norfolk County


Probate Court, Vacation of decree.

There was no error in the refusal to vacate, because of an alleged error of law, a decree of a probate court in an equity proceeding of which the court had jurisdiction.

PETITION, filed in the Probate Court for the county of Norfolk on March 22, 1937, to vacate a decree.

The petition was dismissed after a hearing by McCoole, J. The petitioner appealed.

J. H. Sherburne, (J. B. Dolan with him,) for the petitioner.

R. B. Heavens, for the respondents.

QUA, J. This is the second petition which has been brought here by appeal to revoke or modify a final decree of the Probate Court entered March 25, 1935, on a petition in equity to determine the value of a legacy in the will of Franz Joseph Untersee. Untersee v. Untersee, 293 Mass. 132. Facts relating to the settlement of this estate are set forth at length in Untersee v. Untersee, ante, 417.

The present petition alleges that the decree erroneously allowed interest at six per cent on the value of the legacy as ascertained instead of at four per cent in accordance with G. L. (Ter. Ed.) c. 197, § 20, and it is now contended in argument that the legacy was a specific and not a pecuniary one, and that no interest at all should have been allowed.

Page 426

The Probate Court had jurisdiction in equity to enforce the rights of the legatees. G. L. (Ter. Ed.) c. 197, § 19. There appears to have been a full hearing upon the original petition. The judge's findings of fact show that the final decree was not entered through mistake or clerical error, but that it was entered in pursuance of rulings of the judge deliberately made. If there was error of law in the decree, upon which we intimate no opinion, the easy remedy was by seasonable appeal from that decree under G. L. (Ter. Ed.) c. 215, § 9. There was no error in dismissing this petition. Thompson v. Goulding, 5 Allen 81. Untersee v. Untersee, 293 Mass. 132, 136.

Decree affirmed with costs of appeal.