Kelly v. Burlingame

Rugg, C.J. This is an appeal from an order denying a motion , to vacate the allowance of the will of Harriet N. Abbey. The petition for the allowance of the will alleged that the deceased was a resident of Brookline in the county of Norfolk. The grounds set forth in the motion were in brief that no notice was given of the hearing on the allowance of the will and that the deceased was never a resident of Norfolk County. All the evidence is reported. Therefore on this appeal questions of fact as well as of law are brought before this court, whose duty it is to examine the evidence and decide the case according to its own judgment. Unless it is plainly wrong, the decision of the probate judge will not be reversed, since the questions of fact arose chiefly on oral testimony heard by him. Lindsey v. Bird, 193 Mass. 200. The underlying question was whether the deceased was a resident of Brookline. The evidence need not be set out at length. It has been carefully examined. There was testimony tending to show that the decedent formed an intent to take up her residence in Brookline, where she died, and that she was then of sufficient mental clearness to form and execute an intent as to her domicil. It cannot be said that there was any error of law or of fact in the disposition of the motion. Order denying motion affirmed.