Untersee v. Untersee

13 N.E.2d 34, 299 Mass. 425, 1938 Mass. LEXIS 825

Opinion

Qua, J.

This is the second petition which has been brought here by appeal to revoke or modify a final decree of the Probate Court entered March 25, 1935, on a petition in equity to determine the value of a legacy in the will of Franz Joseph Untersee. Untersee v. Untersee, 293 Mass. 132. Facts relating to the settlement of this estate are set forth at length in Untersee v. Untersee, ante, 417.

The present petition alleges that the decree erroneously allowed interest at six per cent on the value of the legacy as ascertained instead of at four per cent in accordance with G. L. (Ter. Ed.) c. 197, § 20, and it is now contended in argument that the legacy was a specific and not a pecuniary one, and that no interest at all should have been allowed.

The Probate Court had jurisdiction in equity to enforce the rights of the legatees. G. L. (Ter. Ed.) c. 197, § 19. There appears to have been a full hearing upon the original petition. The judge’s findings of fact show that the final decree was not entered through mistake or clerical error, but that it was entered in pursuance of rulings of the judge deliberately made. If there was error of law in the decree, upon which we intimate no opinion, the easy remedy was by seasonable appeal from that decree under G. L. (Ter. Ed.) c. 215, § 9. There was no error in dismissing this petition. Thompson v. Goulding, 5 Allen, 81. Untersee v. Untersee, 293 Mass. 132, 136.

Decree affirmed with costs of appeal.