300 Mass. 266

April 7, 1938 - May 24, 1938

Worcester County


In the absence of an appeal from a final decree dismissing a petition in equity in a probate court following an interlocutory decree sustaining a demurrer to the petition, an appeal from the interlocutory decree brought nothing to this court.

PETITION in equity, filed in the Probate Court for the county of Worcester on May 15, 1937.

After a hearing by Atwood, J., there were entered an interlocutory decree sustaining demurrers and a final decree dismissing the petition. The petitioners appealed only from the interlocutory decree.

F. W. Morrison, for the petitioners.

M. A. Moore, (A. F. Evans with him,) for the respondents.

LUMMUS, J. Appeals from probate courts are governed

Page 267

by equity practice. This was true to a large extent under R. L. (1902) c. 162, Section 15 (G.L. [Ter. Ed.] c. 215, Section 21). Chapman v. Chapman, 224 Mass. 427, 428. Ensign v. Faxon, 229 Mass. 231, 233. See also as to equity cases, Burroughs v. Wellington, 211 Mass. 494, 496. It was made true generally by St. 1919, c. 274 (G.L. [Ter. Ed.] c. 215, Sections 9-18, 22). Mackintosh, petitioner, 246 Mass. 482. Littlejohn v. Littlejohn, 236 Mass. 326. Drew v. Drew, 250 Mass. 41. Boston Safe Deposit & Trust Co. v. Wickham, 254 Mass. 471, 473. Goss v. Donnell, 263 Mass. 521. Gallagher v. Phinney, 284 Mass. 255. Hopkins v. Hopkins, 287 Mass. 542, 545. Bratt v. Cox, 290 Mass. 553. O'Reilly v. O'Reilly, 293 Mass. 332. As in equity practice in other courts (G.L. [Ter. Ed.] c. 214, Sections 19, 26), both interlocutory decrees and final decrees are subject to appeal (G.L. [Ter. Ed.] c. 215, Sections 9, 23), and "Interlocutory decrees not appealed from shall be open to revision upon appeals from final decrees so far only as it appears to the full court that such final decrees are erroneously affected thereby." G.L. (Ter. Ed.) c. 215, Section 14; c. 214, Section 27.

The petitioners claimed an appeal from an interlocutory decree of the Probate Court sustaining the demurrers of the respondents to a petition in equity. There was no appeal from the consequent final decree dismissing the petition. Failure to appeal from the final decree made futile the appeal from the interlocutory decree, and in effect was a waiver of it. Fusaro v. Murray, ante, 229.

Appeal dismissed.