Home JOHN WILLIAMS vs. DISTRICT ATTORNEY FOR SUFFOLK COUNTY.

353 Mass. 748

November 3, 1967

On February 26, 1965, the defendant (now plaintiff) was arrested on two complaints charging offences against the narcotic laws. While the complaints were pending in a District Court secret indictments for the same offences were returned by a grand jury. Thereafter the plaintiff brought this bill in equity seeking collaterally to attack the indictments, the validity of the search warrant, and the right of the grand jury to return secret indictments for the same offences while the complaints were pending in the District Court. The judge, without decision, reported these questions to this court together with the question whether the defendant "can maintain a collateral attack on a criminal indictment by means of a bill in equity which was commenced and entered prior to the . . . [plaintiff's] arrest." It was not open to the plaintiff to raise the questions sought to be presented by means of a bill in equity. See Slome v. Chief of Police of Fitchburg, 304 Mass. 187 , 188. Since the bill has no standing, we do not consider the questions which it attempts to present. The report was improvidently made and is discharged.

So ordered.

Home FELIX CARFAGNO vs. VINCENT J. PANICO, administrator.

353 Mass. 748

November 3, 1967

On a petition for administration with the will annexed of the estate of Caterina Carfagno, a deceased widow, the judge allowed the will and also a codicil thereto. The petitioner, Felix Carfagno, a son of the testatrix and a beneficiary under the will, appealed from the allowance of the codicil. The judge made findings of fact on unreported evidence. The will was executed on June 10, 1961, the date set out in the testimonium signed by the testatrix. The codicil to the will was executed on or about July 3, 1963. The exordium of the codicil and the testimonium signed by the testatrix in the codicil leave blank the date and month of the execution of the will but both state the year as 1961. The attestation clause signed by the witnesses to the codicil, however, refers to the will as having been executed on July 3, 1961. The same attorney (not the petitioner) had drawn both instruments. The will of June 10, 1961, was the only will ever drawn for the testatrix by the attorney. The codicil was to be in relation to the will he had drawn. The codicil was executed on the eve of the attorney's departure for Europe. When he then called upon the testatrix with witnesses, he became aware that he did not have a copy of the will with him and that his secretary had left blank the date and month of the execution of the will. Neither he nor the testatrix remembered the exact date, but both agreed it was in the early part of June, 1961. The changes effected by the codicil relate specifically to three of the twenty-two provisions in the will of June 10, 1961. The judge

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rightly concluded that the reference date in the attestation clause of the codicil was inaccurate and that the codicil in fact amended the will executed June 10, 1961. See Taft v. Stearns, 234 Mass. 273 ; Goodwin v. New England Trust Co. 321 Mass. 502 , 504.

Decree affirmed.