Fidelity & Casualty Co. v. Withington

Pierce, J. These are appeals by the respondent from_ two decrees of a single justice of this court allowing the petitioner to enter late and to prosecute two separate appeals, taken by the petitioner from two separate decrees entered by the judge of the Probate Court for Norfolk County. The only question presented is, whether upon the reported facts substantial reasons require a reversal of the findings of the single justice “that the petitioner intended to claim and enter an appeal from the decree ordered in the Probate Court, and that its failure to do so was without default on its part, and that justice required that the appeals be entered, that the cases may be heard in this court.” We are of opinion the material arid substantial facts of the record, however informally presented, fully support the findings. The petitioner, at the close of the hearing before the judge of the Probate Court, requested to be notified of an adverse decision and was assured it would receive such a notice. The notice was not given. It is plain the petitioner should not be held bound to have anticipated the possible non-action of the court and equally plain that its failure so to do was not a culpable omission or default. Upon the question whether substantial justice requires a revision of the case, Linehan v. Linehan, 223 Mass. 297, 298, the record shows that on April 6, 1900, the Fidelity and Casualty Company filed a petition under R. L. c. 149, § 15, in the Probate Court, to be discharged as surety on the bond of one William H. Drury; that the petition purported to be signed by all persons interested; that the court discharged the surety and accepted a new bond with new surety or sureties in a less sum; that before the filing of the petition, Drury had filed and had allowed his — 540 — first, second, third, fourth, fifth and sixth accounts as trustee, purporting to represent the property received by him as trustee, together with disbursements made by him as trustee; that this decree is in force and unvacated; that December 4, 1916, the respondent filed a petition in the Probate Court to vacate the decree of April 6, 1900, discharging the Fidelity and Casualty Company as surety on the bond of Drury, for the reasons, in substance, that the fifth and sixth accounts of Drury were false and misleading, that the statements in the petition of the surety company “that ‘most of the principal of the estate according to the provisions of said will' had been distributed,” were untrue, misleading and tended to deceive the court; that the court was misled and deceived by these false accounts of Drury and by the false statements contained in the petition of the surety company; and that the court, relying upon the truth and accuracy of the accounts and upon the truth and accuracy of the allegations in the petition, discharged the surety on the bond. It is manifest that the authority of the Probate Court to vacate its decree, final in its form, after sixteen years, rests upon clear proof that the decree was procured by accident or mistake or by fraud practised on the court. Waters v. Stickney, 12 Allen, 1. Tucker v. Fisk, 154 Mass. 574. Crocker v. Crocker, 198 Mass. 401, 404. It is plain that the surety company should have the right to contest the allegation that the fifth and sixth accounts were .false and drawn for the purpose of deceiving the court, as also the charge that the statements contained in its petition were false and tended to and did deceive the court. Decree affirmed.