Worcester. Petition filed in the Probate Court for the county of Worcester on June 8, 1972. The case was heard by Wahlstrom, J. After review by the Appeals Court, the Supreme Judicial Court granted leave to obtain further appellate review.
Hennessey, C.j., Quirico, Braucher, Kaplan, & Liacos, JJ. Braucher, J., Dissenting.
Probate Court, Revocation of decree. Will, Allowance.
The opinion of the court was delivered by: Quirico
Evidence at hearings on a petition for allowance of a will supported the Judge's finding that the will had been torn up by the testatrix with the intention of revoking it. [518-521]
On consolidated appeals by the proponent of a will from a decree disallowing his petition for probate of the will and by the daughter of the deceased from a subsequent decree vacating the decree disallowing the will and from a third decree dismissing a petition to vacate the second, the proponent's failure to argue his appeal from the decree disallowing the will constituted a waiver of his appeal. [521-524]
A probate Judge erred in vacating a decree disallowing a will where the basis for the relief was that the proponent's lawyer had failed to introduce certain available evidence. [524-532]
Braucher, J., Dissenting, would dismiss the appeals on the ground that nothing was properly before the court. [534-535]
This case presents questions arising out of three decrees entered by a Judge of the Probate Court with reference to the estate of the late Ann Francis. On October 17, 1972, the Judge entered a decree disallowing the petition for the probate of the purported will of Ann Francis, the basis for the disallowance being an express finding that the named testatrix had destroyed the will with the intention of revoking it. On November 3, 1972, Mr. Arnold W. Olsson, the proponent and sole beneficiary under that will, appealed from that decree. On November 16, 1972, Mr. Olsson filed a motion to vacate that decree, and on December 1, 1972, the Judge, after a hearing, entered a new decree vacating his decree of October 17, 1972. On December 6, 1972, Christine D. Waite, the daughter and sole heir at law of Ann Francis, and Anthony Francis, the divorced husband of Ann Francis, filed a petition to vacate the decree of December 1, 1972, and after a hearing held thereon the Judge entered a third decree on December 18, 1972, dismissing the petition. Waite and Francis appealed from the decrees of December 1 and of December 18, 1972. Francis withdrew his appeal on September 13, 1973.
The appeals were entered in and argued before the Appeals Court. On February 9, 1977, that court rendered its decision affirming the decree of October 17, 1972, that had disallowed the will; reversing the decree of December 1, 1972, and treating the appeal from the decree of December 18, 1972, as waived and therefore dismissing it. Olsson v. Waite, 5 Mass. App. Ct. 93 (1977). On the application of Olsson, we granted further appellate review. G. L. c. 211A, § 11.
Having further reviewed the issues raised by these appeals, we reach the same result as did the Appeals Court, and for substantially the same reasons stated in the opinion of that court.
1. Decree of October 17, 1972. Mr. Olsson's appeal from the decree of October 17, 1972, disallowing the will of Ann Francis for probate is before us on the basis of the petition for probate, the transcript of the evidence presented at the hearing on the petition, the decree disallowing the will, Mr. Olsson's appeal therefrom, and a report of the material facts found by the Judge as the basis for that decree.
We summarize the material facts found by the Judge to the extent that they are relevant to his disallowance of the will. Ann Francis and her husband had had a long history of marital problems which culminated in his obtaining a decree of divorce nisi on November 10, 1971. This came after a strongly contested hearing at which their daughter, Christine D. Waite, testified in favor of her father, leaving the mother embittered against her. On January 13, 1972, Ann Francis executed a will naming as the executor and sole beneficiary thereunder Mr. Olsson, who had been a friend of both Mr. and Mrs. Francis for some years. The will was drawn by a lawyer other than Mr. Olsson. The lawyer had Ann Francis execute the original will which he gave her and also a carbon copy of the will which he kept in his files. The will expressly stated that nothing was being left to the husband or daughter.
The divorce decree against Ann Francis became absolute on May 10, 1972. On May 23, 1972, Ann Francis said, in the presence of her daughter and her former husband: "I have torn up my will." The Judge found that this indicated "that she wanted her daughter to have all her estate by inheritance, the divorce now ...