Petition for a Writ of Certiorari — Page v. Pan American Petroleum Corp.

Supreme Court brief1965

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UP REME COURT, nie

' No. 3

"DAVID H. PRICE, ROSALIE PRICE, AND HENRY Be coe

Metis casd ; : 2 ed 7 WEA Se PRICE, 3 eS: ve) Lie : os =

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aos aes Petitioners;

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ESTHER PRICE,

Respondent. — -

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PETITION FOR WRIT OF. CERTIORARI TO THE.

_ SUPERIOR COURT OF THE COMMONWEALTH ,

Seetaeey oF MASSACHUSETTS. =

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e gas . . . ot te

-. Joun -D: O’Rumty, Jz,

oe St. Thomas More Drive,

Bole: = Brighton, Massachusetts 02335,”

Counsel for Pet ioners.

' Joserx G, _ Pee ae

Monroz |. : re ee

: 41 ‘remont Street, . < | eee te

» Boston, Manse 02108. ee ee ea

Cee OF Counsel, Nn ee:

_ADUMON C. GRTCHELL & 90%, INC, LAW PRINTERS, BOSTON.

Ne Table of Contents. «

Opinion below = ite |

| Jurisdiction: ~

Question presented

ig Constitutional provision involved

Statement of the case :

The federal | question in the Nou/ts ae i

Reasons for granting the writ C

; i

Conclusion —

, - Appendix Lees of the Supreme Judicial

Court of Massachusetts 10

Appendix B—Opinion of the Supreme Fadicial Court

of Massachusetts . Py 11

Appendix O—Finai decree after rescript entered by

Superior Court of Massachusetts —_ 17

Appendix D—Letter to Chief Justice of Supreme

Judicial Court applying for: rehearing ~ :

-- Appendix E—Letter from Chief Justice acknowl- 2

‘edging. receipt of application . a

Appendix F—Letter from Chief Justice denying ap- | :

plication | 25

‘Table of Authorities Cited. .

eciee Sen

Brinkerhoff-Faris Trast & Savings Co. v. Hill, 281 7

US. 673 : x 6, ye oe

Clapp v. Thaxter, 7 Gray 384. ee

- Cole v. Violette, 319 U.S. 581 . 2n.

. Doris v. State Realty, Co. of setae let, 333 Mass. ;

425, 131 N.E. 2d 185 |

AAT CLAM

fs —7 — , ots —

‘ ae :

ii ee ° ape OF AUTHORITIES CITED

‘ Deiidialon: The, v. Cardinale, 331 Mass. 54a, 118 Pe

| N.E. 24: 740.00°~C oy ae

-, Hodges ¥. Snyder, 261 U.S. 600 Let Nee erie: Seas:

* Hyde Park Savings Bank v. Davankoskas, 298 Mass. °

- 421, 11 N.E. 2d 3 = 8.

. Kingsley v. Fall River, 280 Mass..395, 182 N,E. 84}. Fe Be

McDonald v. Massachusetts, 180 U. S. 311 eee *

_ N.A.A.C,P. v. Alabama, 357.U.S: 449 f 7,8, 9° te

Powers v. Sturtevant, 200 Mass.519 oe

.Prenguber v. Agostini, 989 Mass. 222, 193 N.E. m3 tee

Price v. Price, 341 Mass. 390 Saget Cy 4

Price v. rice; 1965 Mass, Adv. Sh. 431, 204 NE

+ 2902 - : i$ act 4,6

: Rothschild v. Knight, 184 U.S. 334 ea ieee 2

"Saunders v. Shaw, 244 U.S. 317 & | a: ~~~ Sn, 6

3 Savage-v. Welch, 246 Mass. 170 Sai 6 ©

; Sullivan v. Sullivan, 266 Mass. 2 : ee

Thonipson v. Goulding, 5 Allen (Mass:) 81 7

| oe | P saat v. Gove, 183 ~~ 333, 67 N.E. 359 _ Sea

oe YS = ize Whatwese: se:

x ce ara US. Constitution, Amendment XIV, se.i . Se

$e see $1257 (3) ee

ae Garay “ Mais. General Laws (ter Ba.) c. 211, $1 8; ¢. . 281, BOY

pe : © § 185° es ees aera » 2n.

| ey Pa PERIODICAL Crean.

| : f @ Kurhaid, “The Supreme Court, 1963 Term,” Fore-

ie BS eke fsiscnhlcmetaiipes i 0 i

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a —————— 7 " _

es oa is Pie

Be Supreme Court of the United States.

P) Sis Re a ¢

Ocrosze-Tzem, 1964.

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_ DAVID H. PRICE, ROSALIE PRICE, ano’ ‘HENRY 8.

, PRICE,

- Petitioners,

rors Ge di LA Toe De

Respondent.

N FOR WRIT OF CERTIORARI TO THE

OF MAS |ACHUSETTS.

To the H Saoruhla the Justices of the Supreme Court oe the

United States: ore

- Petitioners pray that a writ of certiorari issue to review

the decree’ of the Superior Court of the Commonwealth of

Massachusetts entered. in accordance with the rescript of .

the Supreme Judicial Court of Massachusetts dated March .

4, 1965, in the case there entitled David H. Price &. Another

v. Esther Price & athers. eae,

tga Sis " Opinion Below.

An opinion was filed by the Supreme Judicial Court of

Massachusetts on March 4, 1965. It is reported in 1965

~~ °

SUPERIOR COURT OF. THE ‘COMMONWEALTH | Shy

> 7 ,

- Massachusetts Advance Sheets 431, 204 N. E. od 902. It i is

| aati in the Appendix, p. 11.

& << J urisdiction

The rescript of the Shaipreme J udicial Court. of Massa- _

chusetts ‘i is dated March 4, 1965. It ag ei a decree, (B.

- 37) of the Superior Court.’ ;

‘The jurisdiction of this Court i is invoked ‘wales 98 U.S.C.

§ 1257 (3).

The writ is sought to be directed to the Desetter Court,

- and not to the Supreme Judicial Court, because, under the

Massachusetts statutes * and practice, only questions of law —

are brought before the Supreme Judicial Court, the record *

and decree remaining in the Superior Court. In this case,

_ in accordance with its usual practice, the Supreme Judicial '

Court did not remove the record from the Superior Court.

McDonald v. Massachusetts, 180 U.S. 341 (opinion by Jus-

tice Horace Gray). Rothschild v. Knight, 184 U.S. 334. See

also Hodges v. Snyder,.261 U.S. 600, 601. -

“Question Presented.

When a state trial eourt enters a final decree from which

an appeal is taken, and the case law of the jurisdiction is

1The Superior. Court, on March 15, 1965, entered a decree after -

reseript (App. 17 ): ‘This is the decree of which review is sought.

An application for rehearing (dated March 16, 1969) was "presented

_ , to the Chief Justice of the Supreme. Judicial Court (App.-20). It

was denied on April 1, 1965 (App. 26). Time for filing this peti-

nm, however, will bectaken to run from the date of the rescript. :

Colé vy. Violette, 319 U.S. 581. :

_ *Mass. General Laws (Ter. Ea.) ¢ e: 211, § 85. 231, § 185.

—_—_—s-——

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; ’ . ‘ ,

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2s 7 ° ’ ° ; = . . 1

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clearly established. that the trial.court has no jurisdiction |

to procéed further in: the case, but the trial court entertains

.a motion to ‘vacate! its decree and undertakes further pro-

: ceedings looking: to a “Substitute decree, and the party.-who °

took the appeal, relying upon the established law, declines

‘to. take part in the further proceedings, and the trial-court |

‘vacates its decree and enters a substitute decree, does the

decision of the state’s highest. court, sustaining the juris- -

diction of the trial court to proceed further after entering |

.,its first decree, and affirming the substitute . decree (thus

actually, though not expressly, overruling retroactively the ee

established law as to trial court jurisdiction) deprive the

party of his right to. — in the ¢

of law? :

e - . e _

. lik “ aa

Constitutional Provision pereived. .

_. The Constitutional provision involved “ the following in

clause of section 1 of Amendment xIV: . nor shall

any State deprive any person of life, bert, or Property,.

without due peeved of laws...” .

a Statement of the Case. ,

- Two of the aitlenns, David H. and Rosalie Die. chil-

dren of one Louis N. Price, deceased, and legatees and

devisees. under his will, brought a ‘suit (R..1) against the

respondent, Esther’ Price, the widow of Louis. The suit

was to restrain’ prosecution of an action at law by the

widow against, the executor and trustee under the will of .

Louis for enforcement.of an. alleged-will compromise agree-

“ment, to obtain an accounting of funds paid to the widow

by the executor, and to obtain a declaratory judgment of the

validity of an antenuptial agreement betweer. Louis and

e-without due preven

mere one wre hee eee

Esther (R. 5) by which each renounced rights 3 in the prop-

- erty of the other. Petitioner, Henry. Price, the executor

and trustee, was ‘made a party defendant, as was Pearl .

Clayman, another child of the decedent, and a beneficiary

.. under his will. Pearl Clayman did not appeal, _ isnot. -

*s petitioner.

, After the defendant Bother Price’s demurrer to the bill

of complaint was overruled (Price v. Price, 341 Mass: 390),

« she filed a,substitute answer (R. 18) which, the trial judge

' ruled °(R..41), contained a counterélaim setting forth the

_ alleged will compromise agreement and seeking ‘enforce;

ment thereof. :

The case was heard in part on September 27 and 98,

_ 1962, and on the latter date it was continued to some future

* “day (R. 48, 49). A further.hearing was held on December

- 13, 1962 (R. 49), and on December 19, 1962, a final decree

was entered. against Henry S..Price, as he is executor and

‘trustee under his father’s will, ordering him to pay Esther

_Price a sum of money (R. 31). The plaintiffs (R. 32) and, _

Henry S. Price, as he is executor and trustee (B. 33), a :

pealed from this decree. ;

Henry S. Price had not been given notice of the on |

13, 1962, hearing: (R. 37) and the trial judge entertained

his. motion (R. 35) to vacate the decree, and later, on March

25, 1963, allowed the motion (R. 37). Meanwhile, on Janu-

aty 16, 1963, further testimony was taken in the case. Mr.

Crane, counsgl for the plaintiffs, “steadfastly declined the

opportunity 1 to cross- examine, asserting that the: court was

without jurisdiction”’ (1965 Mass. Adv. Sh. at 434, 204 N. E:

¢.

2d at 904-905, R. 50, 51). Thereafter, on May 6, 1968, an-- °

other final decree was entered (R. 37) declaring that a valid

' will gompromise agreement had been made, and that it was. ~

made with the consent’ of the decedent’s children, and order-

‘- ing Henry Ss, Price personally, as well as in-his character °

of executor, and trustee, to pay Esther Price a sum of

eee

ee og

money. Appeals were duly taken from this decree (B. 39), .

and, as noted above, the Supreme Judicial Court affirmed

‘the second final ‘decree: Its rescript i is s anmunty in the 58

“pendix, p. 10.

The Federal Question in the Courts Below.

’ The question presented was raised initially after the de-

cision of the. Supreme J udicial Court by an application

for rehearing and reconsideration (App. p. 19), which, after

receiving the consideration of the Court,,was denied (App.

_p. 25)

, This -was, the earlicet ote at which the question could:

have been raised. At the-time of the trial, as will be fully

documented under the heading ‘*Reasons for Granting :

~ the Writ’’ (post, p. 7), the law’ was abundantly clear that,

once a judge sitting in equity enters a final decree in a case,

he has (subject to certain exceptions not here. relevant) no

.“ =.

er. Technically, an application for rehearing i is not a part of the ©

record in a‘-Massachusetts case. Under the practice established

in Powers v. Sturtevant, 200 Mass. 519, the Court, as such, does

not entertain motions for rehearing. - However, a party considering

himself aggrieved may address a letter to the Chief Justice. Tlie

correspondence in the present case (App. p. 25) indicates a prac-

- tice of-referring such letters to the other Jpstices for their con-

sideration. In some other cases the consequence of such a letter

has been modification, or even complete withdrawal, of an opinion

of the Court.

Since, as is shown in the text-above, the question could not have

been raised earlier, and Since there is no other way to raise it, and

~ gince-the application, and the Chief Justice’s reply speak for them-

selves, this Court may.. properly look.to this technically: extra-

record evidence of the federal question having been, timely raised.

Saunders v. Shaw, 244 U.S. 317, 320. . Massachusetts has no prac-

tice equivalént’ to, for — New York's amendment; of the

—ae ;

—

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96...

jurisdiction to seid further i in the case. If his entry of

the decree was erroneous, the error is correctible only -

through appeal (or a bill of review, in the limited in-_

stances where the latter remedy is appropriate).

Your petitioners: took an appropriate appeal tres the

final decree of December 19, 1962, which all parties now

agree was improperly entered. At that time they had no

reason to anticipate a retroactive change of procedure for

correction’ of. improper entry of final decrees. Had they

- acquiesced in the trial judge’s assertion of jurisdiction, they

~ might well be found te have waived their appeal from the

decree, which, it will be noted, had not been vacated at the

time the trial judge conducted the further hearings.

Nor was there reason, when the consolidated appeals

- from the decree of December 19, 1962, and the decree of

May.6, 1963, came on to be heard, to anticipate that the

Supreme Judicial Court would ignore a long line of its own

_ precedents on chancery jurisdiction and would subject

equity proceedings to the thitherto contrary jurisdictional

standards applicable-in proceedings at law. This is the

significance of the citation of Savage v. Welch, 246 Mass.

170, in the opinion, 1965 Mass. Adv. Sh. at 434, 204 N.E.

2d at 904 (App. p. 14).

Since your petitioners were taken by surprise by “the

. formulation of a new procedural rule, the retroactive ap-

plication of which to them had the effect of impairing their

constitutionally protected right to a hearing, they acted

soon enough when they made their claim of federal right

after the existence of the new rule was announced. ‘er

erhoff-Faris Trust é Savings Co. v. Hill, 281 U.S. 673. Th

. fact that the, Court declined to consider the issue tendered

by the application for rehearing does not oust this Court

of jurisdiction to consider it. Saunders v. Shaw, 2 244 U.S.

317, 320..

Reasons for Granting the Writ.

1. Mie decision alow does not accord with décisions of

: ‘ this Court to the effect that a state court is not free to make

_ changes in its adjective law and to give the changes retro-

active effect so that they operate to deprive a litigant of his -

constitutional right to a hearing. Brinkerhoff-Faris Trust

& Savings Co..v. Hill, 281 U.S. 673, 677-678. N.A.A. CP. v.

Alabama, 357 U.S. 449, 454-458.

In Massachusetts, prior to the‘decision of this case, ah

. unbroken line of authority had applied, for over one hun-

dred years, the doctrine that ‘‘The well settled rule of

chancery practice is, that, after a decree has been enrolled, |

that is, after it has become matter of record, there can be.

no rehearing, either on motion or petition. Clapp v. Thaz-

ter, 7 Gray, 384.” Thompson v., , aes 5 Allen (Mags. )

a, 82.

‘ In the Clapp case it was indicated that the only relief _

’ from an improperly entered final decree was by way of bill

of review. Later, probably in consequence of the exten-

sion of equity jurisdiction to the Superior Court, it was

held that such relief could also be had by appeal. White

v. Gove, 183 Mass. 333, 340, 67 N.E. 359, 362. This core

doctrine of equity practice ‘that a final decree may be at-

tacked by appeal or bill of review (where appropriate),

but not by motion, has been consistently followed. Kings-

ley v. Fall River, 280 Mass. 395, 398, 182 N. E. 841, 842.

Prenguber v. Agostini, 289 Mass. 222, 193 N.E. 743.. Doris

‘vy. State Realty Co. of Boston, Inc., 333 Mass. 425, 426, bi

-N.E. 2d 185, 186.

‘As the Court recognized i in Thompson v. Goulding, supra,

there are some exceptions to this rule. Relief may be had

by motion where a party is defaulted through negligence

‘of his attorney (Sullivan v. Sullivan, 266 Mass. 228, 229,

165 N.E. 89) or, in the case of a corporation, the negligence .

et we 44 ed PORNO P

Aeterna EO °

of an officer (Hyde Park Savings Bank v. Davankoskas,

298 Mass. 421, 423, 11 N.E. 2d 3, 5). Likewise, clerical .

errors in a decree may be corrected upon motion (Enter- |

' prises, Inc., _v. Cardinale, 331 — 244, 245, 118 N.E. ad + |

740, 742). eee 7 /

The instant case does not fall within aus of these ex- . ee

ceptions. In any event, the Supreme Judicial Court did not a

put its decision on the ground of an exception to the gen- |

' eral rule. In ruling flatly that a trial judge in equity has... >

jurisdiction to proceed further after entry of a final decree, |

it deprived your petitioners ‘‘of all existing remedies for"

the enforcement of a right’? (Brinkerhoff-Faris, supra,

281 U.S. at 682) after your petitioners, had conducted them-

selves ‘‘in justified reliance upon prior decisions’’ (N.A.A.

CP\, supra, 357 U.S.:at 457).

2. The case presents an important issue » of federalism.

‘The very fact that théissue has come up underscores the

o . danger that state court judges may become-so engrossed. oad

____.__in performing their undoubted function of defining, whether ——______-__—

* by statutory construction or by the common-law evolution-

ary. process, rules of local procedure that they may overlook~ +

‘ possible impacts of their definitions upon rights protected

' by the national Constitution. This ‘suggests the desira- |

_ bility of this Court’s laying down further guidelines lim- om:

ning the constitutional boundaries of state court power to

determine local adjective law. !

Furthermore, the voice of the cynic has been heard inthe , 4

land. It has been asserted. that some pronouncements of

constitutional doctrine have been tailored to the current tide

' of ‘racial egalitarianism.’ spine Such assertions may tend

4 .

4&. g., Kurland, ‘‘The Supreme Court, 1963 Term,’’ Pacamecd

78 Haru L.- Rev. 143-176, passim, and, particularly, 162: ‘‘It

would be helpful if these and other similar cases could be labeled

oe eee sil

: >

to breed the feeling (although it would hardly be expressed

forthrightly in judicial opinions) that constitutional doc-

trines announced in cases growing out of race relations, such |

as N.A.A.C.R, v. Alabama, supra, 357 U.S. 449, are to be

diluted when: sought to be applied in cases without racial

overtones. In this case the Court could clarify the ques-

tion whether a state court is just as inhibited in ignoring,

or retroactively overruling, its earlier decisions (N.A.A.C.P.

v.. Alabama, supra) as it is in retroactively changing its

_ construction of a statute (Brinkerhoff-Faris Trust G Sav-—

_ mgs Co. v. Hill, supra, 281 U.S. 673) when the.consequence ~

of its action is to deprive a party of a constitutionally pro-

tected right.

Conclusion.

For the foregoing reasons, this petition for a writ of

certiorari should be granted.

Respectfully’ submitted, is

JOHN D. O’REILLY, JR.,. .

_ St. Thomas More ete “6

Brighton, Massachusetts 02135,

Counsel for Petitioners.

JosePH G. CRANE,

- Mowroz L. Inxer,

41 Tremont Street,

Boston,. Massachusetts 02108,

Of Counsel.

ew K Src 10

| Appendix A.

CoMMONWEALTH oF MassaCHUSETTS.

‘ Supreme JupiciaL Court FoR THE COMMONWEALTH,

; Art Boston, March 4 1965.

IN THE CASE OF

tr: :

Davip H. Price & another

vs.

Esruer Price & others.

“pending in the Superior Court for the County of Norfolk

OrpereD, that the following entry be made i in the docket ;

viZ.,—

Final decree entered: May 6, 1963, , affirmed with deities

costs. to Esther Pricé.:. |

By the court, ' . .

Ricuarp A; ee Clerk. i

March 4, 1965. ,

. —

Brief statement of the grounds and reasons of the de-

cision : . 7

See opinion on file.

A true copy, +

Attest: |

Ricuarp A. McLaucHuin

Clerk. .

Appendix B.

; ADVANCE — SHEETS

OPINION 5 OF THE : SUPREME J UDICIAL COURT

Published ‘under euttidts os Chuptor 408°of i Acts of 1938

B sveea= 2 raonc bat Leon ‘Sraner, Boston 15, Mass.

me Dav H. i & another vs. EstHer Price & others.

‘

Norfolk. December 7, 1964. — March 4, 1965.

Present : “Wrixine, C.J.; WHITTEMORE, CuTrer, Kirk, gf ae JJ.

__ Contract, Compromise relipeitinng decedent’s estate, Validity,. Considera-

‘tion. Executor and Administrator, Compromise. -¢ Equity Pleading and

Practice, Report of evidence, Findings by judge, ‘Counterclaim, Decree.

Suit in equity heard in the Superior Conrt by. cher J.

Rearvos,’ J. These are appeals by the plaintiffs* and by

the defendant Henry S. Price from two decrees, each desig-

’ nated ‘‘Final Decree.”? This controversy was before this

- court in 1960, at which time an interlocutory decree. sustain-

ing the defendant ‘Esther Price’s demurrer was reversed.

_ Price v. Price, 341 Mass. 390. - Following the overruling of

her demurrer the defendant Esther Price (Esther) filed a

substitute.answer in which she averred that she had entered

into a compromise agreement with the defendant Henry S,

». Price (Henry), a devisee under, and executor of, the will of

. Louis N. Price Esther alleged that, by the terms of the

agreement, she was to withdraw her appearance in the Pro-

—te-

1No brief was filed by the defendant Henry 8. Price; his motion that the

_ ‘plaintiffs’ brief be adopted as applicable to his was alowed. The

appeals of the plaintiffs and Henry have been consolidated.

? Esther was the second wife of Louis| N. Price. The defendants Henry

and Pearl Clayman and the plaintiffs, David H. Priee and Rosalie Price, are

children’ of Louis N. Price by his first marriage. —

[ 481}

| 12

bate Court continting the will and that Henry, as executor

was to pay to her, free of all taxes and for the rest of her |

life, $100. per week and, in addition, $2,000 every two years —

towards the purchase of.a new car. Esther’s substitute an-

swer concluded with a prayer. that Henry be ordered, as

executor, to pay-her the VF aig due under this agreement.

_ On"October 2, 1962, Esther moved that orders of notice

issue for personal service upon the defendants Henry and

Pearl.Clayman, and ‘‘that they be ordered to answer to the

pleadings entered against them by the Complainants...

-and. by the Defendant, Esther Price.’?. Henry and Pear!

having failed to respond to the ‘‘suit®? wherein ‘Esther

~ sought relief, an interlocutory decree taking the bill for

confessed was entered on November 27, 1962. On .Decem-

ber 12, 1962,’an appearance was entered on behalf of Henry

by Daniel G. Rollins, Esq. On December 19, 1962, a final

decree was entered ordering Henry. to pay Esther theysum

of $112,330.

On January 4, 1963, the plaintiffs moved to vacate the -

_ final decree, urging that it was entered after a hearing of

~ .which they had no notice; that Esther’s substitute answer »

failed to comply with Rule 32 of the Superior Court (1954) ;

that Esther’ s conduct in pursuing heg claim violated gn —

outstanding preliminary injunction ;* and that the decree ©

was not properly entitled ‘‘Final Decree.’’ Henry moved

to vacate-on similar grounds. The latter motion was ‘al-

lowed on March 25, 1963. In a second final decree, entered

on May 6, 1963, the judge revoked the preliminary i injunc-

tion and ordered wesgane to pay Esther as before, plus

interest.

1; We consider initially Eather sg conterhios that: the

transcript of evidence is not partvof the record before the

- court because the evidence was not.reported in accordance

with G. L. c. 214, § 24, or Rule 76 of the Superior Court.

(1954). It is settled that where there is nothing outside of

a a 8 recital to indicate that any person was

| 88ee Price v. Price, 341 Mass, 390, 392.

ee. : Aatar

\ . .

designated to take the testimony ‘and oheee no record indi-

cates any action of the judge or notation by the clerk with

reference to any appointment, a transcript cannot be con- .

sidered part of the record. Thayer. Co. v. Binnall, 326

- Mass. 467, 482. An examination of the docket (see Styrn-.

brough v. ‘Cambridge Sav. Bank, 299 Mass. 22) indicates no

order by the trial judge that the transcript be “included in

. the record. Teal. v. Jagielo; 327 Mass. 156, 157. Delora- —

_ fano v. Delorafano, 333 Mass. 684, 685. We thus have not

considered the evidence.

' The-case is before us on the judge 's report of material

facts which must be taken as true ‘‘except to the extent

that they ‘are.inferences from Subsidiary findings or are in-_

consistent with each other or with the pleadings.’’ Stur-

nick v. Watson, 336. Mass. 139, 143. See Tompkins.v. Sul-

: livan, 309 Mass. 496, 497.

2: The judge ruled that ‘the portion of. Esther’ s substi- —

- tute answer containing the allegations and prayer for af-

firmative relief, although-not ‘designated ‘‘counterclaim,”’

complied with the requirement of Rule 32 of the Superior

. Court (1954) that a counterclaim ‘‘shall be .. . described

clearly as by way of counterclaim.” If there. was a defect

of pleading, it could be met only by demurrer or motion to

'_ strike. Mitchell v. Carrell, 321 Mass. 453, 454-455. Nei-

ther pleading was filed. In fact, no answers to cacemti

counterclaim were‘filed by any party:

_ : 3, It.is contended that the decree:of Desember 19, 1962,

is void for-want of notice to the. plaintiffs or to Henry of

the hearing upon which the decree was based and at which

an actuary testified to the present. ‘value to Esther of the

compromise agreement. In his allowance of Henry’s mo:

tion to vacate this decree the judge noted that Henry had

réceived no notice. The final decree was entered upon a

decree pro’ confesso which, had adequate notice been given,

would have been a proper disposition of the counterelaim.

Rule 26 of the Superior Court (1954). Medlinsky v. Pre-

mium Cut Beef Co. 317 Mass. 25, 34. Allowance of Henry’s

motion mpestected his right to be heard at all ween # of the

[ 433] .

an,

—

‘iaiiias See Hyde Park Sav. Bask v. Davankoskes,

298 Mass. 421, 423-424, and cases cited.

The plaintiffs argue that while the final decree of Decem-

ber 19, 1962, on its face disposed only of a counterclaim, its

, effect was to render impdssible the relief which they seek

- in this suit since any later decree in the plaintiffs’ favor

_ would be repugnant to the disposition. of the counterclaim.

_ The plaintiffs’ contention is that they were indispensable

parties to the proceedings, that therefore they can appeal

from the decree, that the decree must be set-aside for want _

of notice and that the. plaintiffs having never withdrawn

their appeal of January 2, 1963, the court. was. without

jurisdiction to enter a further figal decree on May | 6, 1963.

While this argument exhibits terhnical virtuosity, it ignores

the fact that the court in granting@Henry’s motion to va- —

*- eate the decree of December 19, 1962, vacated it for all —

parties. Cf, Sullivan v. Sullivan, 266.Mass. 228, 229; En-

| a Inc. ¥.. Cardinale, 331 Mass. 244, 246. We are

satisfied 4 at the rights of the plaintiffs were adequately

: protecte ince at. the hearing of January 16, 1963, upon

which the decree of May 6 -was based, all witnesses who had

testified previously were available for cross-examination.

Counsel steadfastly declined the opportunity to cross-exam-

ine, asserting that the court was without jurisdiction. The

court ruled that it did have jurisdiction. We sustain that

ruling. See Savage v. Welch, 246 Mass. 170, 178. :

4. When this case was before this court on'the demur- .

rer, the plaintiffs asserted in their brief that the compro-

mise agreement was entered into ‘‘without the consent of

the beneficiaries.’’ Our earlier holding was that while

Henry’s discretion as executor was very broad it could not.

properly be exercised ‘‘dishonestly, arbitrarily,,in bad faith,

or as the result of fraud.’’ Price v. Price; 341 Mass. 390, - _

‘ 392-393. The trial judge’ has found that Henry did not

exercise his power to compromise in violation of the stand-—

ards laid down.

The plaintiffs present several arguments of law, contend- |

-ing that the oral rescission of the antenuptial agreement -

[ 434]

sity . .

by Louis N. Price and Esther, in t

e presence of a trustee,

‘ . ‘was void or, alternatively, that they are entitled to rescis-.

‘sion of the compromise. agreement. Resolution of these

arguments, if necessary to the disposition of the case, would

present questions of complexity. But the trial judge has.

found that the compromise agreement ‘‘was authorized and

approved with full knowledge of its terms and provisions

by the other parties . . . namely the plaintiffs David...

and Rosalie ... . and the other defendant, Pearl Clayman.”’

_, The judge found that Esther received $2,000 from Henry

on Séptember 4, 1957, and a weekly check for $100 begin- 2

ning November 1, 1957. The payments were discontinued

-after December’ 26, 1958.‘ The judge’s report states fur-

_ ther that aftér the payments stopped/and Esther had insti-

tuted an action at law to enforce the compromise agreement

‘‘a conference was had at the office of the counsel for the

petitioners at which Henry Price, Pearl. Clayman, David —

Price and Rosalie Price were present and participated; and _

as a result of said conference this bill in equity was pre-

pared and signed, and acceptance of service on the, two

respondents Henry and Pearl was sighed by them respec- |

tively at the bottom of the petition itself before the petition

was entered in Court.’’ _

The findings of the judge-that Esther acted “in good.

: faith, in the honest belief that she had all the rights of a

widow’’ and that Henry entered into the compromise agree-

ment with the full knowledge and consent of his brother

and sisters establish, without further inquiry into the many

issues raised by plaintiffs’ counsel, Esther’s rights under

the agreement. While forbearance to pursue a claim known

to be frivolous would not constitute good consideration, it

need not appear, in retrospect, that there was a valid cause

4On June 9, 1958, Henry’s attorney, Mr. Rollins,.drew up a petition for

settlement, incorporating the terms of the compromise. This. tion was

never formally executed or filed in court, ‘Although: statutes ing with

compromises by executors have been enacted (G. L. ¢. 204, §§ 13-18), the

executor retains his common law right to compromise claims. Chadbourn v.

‘Chadbourn, 9 Allen, 173. Wallin v. Smolensky, 303 Mass. 39,41. MacDonald _.

v. Gough, 327 Mass. 739, 742.

ie oe ae [435]

of action or even that the asserted ground was reasonable.

Blount v. Wheeler, 199 Mass. 330, 336. Mackin v. Dwyer,

205 Mass. 472, 475. Codman v. Dumaine, 249 Mass. 451,

| 457-458. ‘Ghermat v. Werby, 280 Mass. 157, 160. Higgims

' y. Gilchrist Co. 301 Mass. 386, 390. At.the time of the com-

promise Henry was fully apprised of all facts and, with .

the approval of David, Rosalie and Pearl, decided not to~

_ litigate the widow’s claim. That he may have labored un-

_ der-a mistaken view of the parties” respective rights can be ———-—

of no avail.- Mackin v. Dwyer, supra, at 476. Stlverv. —

Graves, 210 Mass. 26, 29-30.

Final decree entered May 6, 19638,

affirmed with double costs to

Esther Price. —

. Joseph G. Crane (George Broomfield with him) for the

plaintiffs:

John H. Fletcher Calver (Joseph Schneider & Robert L.

Schneider with him) for the defendant Esther Price. —

(4 ae ee

»@ "NORFOLK, 88. _

Ws.

Appendix C. > 3

Commoxweanen OF ae cope

PERIOR CouRT

No. 66757 |

Davp H. Price et al

vs.

_EstHer Price et au

awh Pee E Bip OMe se ciaepe ale PATI SE Se 3 aca

arr ee!

foe ait PEE LILI GMS jo aE A ite 3 os

Fina DEcreE AFTER RESCRIPT FROM THE SuPREME J UDICIAL

- Court

This cause came on to be further heard upon the matter

of the entry of a final decree after rescript from the’ Su-

preme Judicial Court, and thereupon, in conformity to said

rescript, it is ordered, adjudged and decreed as follows:

--1.- ‘The antenuptial agreement duly executed on or ‘about -

_ July 22, 1940 between Louis N. Price_and the defendant .

Esther. Price, a copy of which is annexed to the Bill of

Complaint. marked A was annulled and cancelled, in April

of 1957, by. the parties through a trustee, William Winer,

and each of the parties to.the said agreement. was dis-

charged from all obligations thereunder.

2. The preliminary injunction issued aaak Prayer 1 of

the Bill of Complaint.is hereby revoked. ¥

3. A valid agreement of compromise was entered into

between Esther Price and Henry. S. Price by the terms of

which said Esther Price withdrew her appearance contest-

“ing the allowance of the will of the late Louis N. Price and —

- waived all rights of a widow in said estate, and. the said

Henry Price for himself, as executor named in the said will

as executor of the said will, and as trustee of the trust

created in said will promised and agreed to pay to the said

Esther Pricé the sum of $2,000.00 at the time the agree-

- ment was entered into and the further sum of $2,000.00

4 ay 18

every two years thereafter, all tax free, during the. life

of the said Esther Price and the further sum of $100.00

each and every week thereafter to the said Esther Price,

all tax free, during the rest of her natural life.

4. In entering said agreement of compromise the said

Henry Price acted in good-faith, with the full knowledge

and consent of the complainants and the respondents and

the respondent Pearl Clayman; that the said Henry Price _

in entering said agreement of compromise was duly em-

powered and authorized so to ‘do under the terms of the

will of the said Louis N. Price; that he did not exercise

such power tq compromise dishonestly, arbitrarily, in bad

faith, nor as the result of fraud.

\See Price v. Price, 341 Mass. 390, 392-393. ;

5. Under the counterclaim of Esther Price against the

_ respondent, Henry S. Price the said Henry S. Price per-

sonally, as executor of the will of Louis N. Price and as

trustee under the said will, pay to the respondent Esther

Price the sum of $112,330.00 with interest from December

19, 1962, in the of fifteen thousand fifty two dollars,

and 22/100.

6. That the petitioners and conga Henry S. Price

pay double costs in the sum of Fifty-Five Dollars ii we)

to Esther Price.

(Murray, J. ) ie

| . Att. Gzonce N Hur, J R.

oe Assistant Clerk

Entered : March 15, 1965

7 March 15, 1965 Ordered: The clerk may: insert in para-

graph numbered 6 herein, as designating costs, the words

bs @

~ 19

a figures cahiey hon dollars ($55 00); and, thereupon, the

within decree may be entered.

. Frank. J. Minsise

os an

A True Copy:

* Attest: .Gzorcz N Hupp, Jz. Beers

Asst Clerk «:

_A True Copy:*

Attest: Joszpn' P. Scuank —

Constable of Boston ~

\ |

\Appendix D.

[Letterhead of Crane, Inker, Zamparelli & Oteri. J

Honorable R. 8. Wilkins

Chief Justice

_ Supreme Judicial Court

Boston, Massachusetts

Re: Price v Price _

S.d.C. Docket number 6514

Dear Mr. Chief Justice: ~ at

} Pursuant to the practice prescribed in Powers v Sturte-

vant, 200 Mass..519, we address you with respect to’ the

' opinion filed in the above case. The purpose of this com-

- munication is to obtain a re-hearing dr re-consideration of

the above case for reasons hereinafter set forth.

Central to the plaintiffs’ argument in tha appeals of

ease is the proposition that the trial court had no j

_ diction to revoke or modify the final decree of December —

19,1962, and that, consequently, the second final decree,

_ pp. 6, 7, 8). | a |

2 3 : 20 ; rg 3 |

Sis been the settled law of the Commonwealth for

years that a judge sitting in equity, once he has

pede: a final decree in a case, has no power to rehear or -

vacate. Any errors .are correctible only by appeal, or

where appropriate, bill of review. Thompson v Goulding, .

.§ Allen 81, 82; White v Gove, 183 Mass. 333, 340, and text

and cases cited i in Reed, Equity Pleading and Practice ss"

| 1051-1053. ti

The decision of the Supreme Judicial Court, = recogniz-

final decree and to conduct further proceedings culminat-

ing in another final decree in modification of the first, is in-

‘compatible with the earlier established doctrine. In effect,

ey it tells the plaintiffs that they should\have engaged in pro-

ceedings which, until now, the trial court had no jurisdiction _

to conduct. If this: retroactive overruling of the earlier

doctrine as to jurisdiction to vacate or modify a-final de-

cree stands, the plaintiffs will have effectively been de-

-prived of their opportunity to be heard. This would be:

in violation of their rights under the due process clause of

-. the Fourteenth Amendment of the United States Consti-

_.+. tution. ‘Brinkerhoff-Faris Co. v, Hill, 281 U. S. 678;

NAACP v Alabama, 357 U. S. 449,. 457-458. |

- The cases cited in the Court’s opinion [Appendix A, p. 14, »

v supra] do not support the conclusion that as trial court

3 ~ had jurisdiction to do what it did.

| In Savage v Welsh, 246 Mass. 170, 178 there are ihe fol-_

lowing elements of differentiation from the instant case:

(1) What was involved was jurisdiction to amend a dec-

laration, not jurisdiction to vacate a judgment; (2) The

amendment was in affirmation of .the judgment which had

_ been rendered (G. L., c. 231, § 56), not in derogation thereof.

(Higgins v. First National Stores, 340 Mass,618) ; (3) The .

ae amendment was as to a matter of form (viz., setting forth

“, im two counts what had originally been stated in one), not,

. 21

as ‘in the instant case, as to matters of substance (viz.,

vacating and modifying the decree itself); (4) The pro-

. ceeding was an action at law, subject to G. L., ¢. 231, § 56,

not a suit in equity which is subject to traditional rules of

chancery jurisdiction which have not been changed by

statute in any relevant respect. _

‘In Sullivan v Sullivan, 266 Mass. 228, 229, the Court

: applied the exception (Thompson v Goulding, 5 Allen 81,

| 82) to the rule that ‘a. judge is ; without jurisdiction to va- PR

-eate a-final decree, viz., where the decree was obtained by

default’ through the negligence of the defaulted party’s

- golicitor. This exception is not relevant to ‘the instant case.

In vacating . the first final decree in the case the judge ~

recited (R., 37): ‘‘No notice of hearing on.,@ final decree .

was given to Henry Price or his counsel of record.’?-

_ Enterprises, Inc. v Cordiale, 331. Mass. 244, 246 sup-

ports the position of the plaintiffs. ‘It points out that after

entry of a final decree no change can. be made, save for cor-

rection of clerieal errors. Here, as there, the revocation

- of a final decree should be held to be more than correction

of a clerical error.

It is submitted that the éiapuiition of the appeals should

have been: reversal of the ‘decree of December 19, 1962

for want of notice of hearing on that decree, and reversal

of the decree of May 6, 1963:for want of jurisdiction to enter

that decree. It is respectfully requested that the Court,

either on its own motion or after reargument, reconsider

its decision on the jurisdictional point. In the alternative,

it is requested that, to the extent that the decision over-

- rules earlier doctrine, “the overruling be prospective and

- applicable only to cases arising in the future (Great North-

ern Railway v Sunburst Oil Co., 287 U. S. 358). . This would

call for the same disposition of the appeals as that indicated

above.

: 22

vee i ; ‘THE ee

> In appraising the opinion of the court we have ‘iad’

- that the critical .passages ‘are in the section of the opinion

numbered 4 and which read as follows:

-_ “But the trial judge has found that the compromise

agreement ‘was authorized and approved: with full

fee ex haga of its terms and provisions’ by t wal other

‘as parties 1° + namely the: ‘plaintiffs David . . and

-_-Rosalie™. . and the other defendant, ee “Olay

man. 99 % -

Nom findings of the ade that ‘Esther acted ‘in good

faith, in the honest belief that.she had all of the rights

of ‘a widow’ and that Henry entered itito the com-° ~

premise agreement with the full knowledge. and consent

‘of his brother and sisters: establish, without: further —

, inquiry into. the ‘many issues raised by plaintiffs’

“counsel, Esther’ 8 rights under this agreement.”’

We are of the opinion that the foregoing findings. based .

aw the report of Material Facts were the determining factor

‘ which led thd court, not onlyto the result reached, but Ao.

the decision not to consider the ‘evidence because obviously

if these findings be sound, any agréement of compromise

which Henry. Price may have entered With, Esther Price

with the authority and knowledge of his sisters and brother,

would have been binding on the plaintiffs and on ‘Mrs: ~Glay-

man ‘and Henry Price. It must be apparent that if these”

were the facts, counsel would never have undertaken this

litigation. It is respectfully suggested that the sheer in-

credibility of the situation should: have led the court to

examine the testimony.

Examination .of the testimony will diedtons that both

Rosalie Price.and David Price testified clearly that they —

_. had no knowledge of the existence or terms of any agree-

ment between. Henry Price and Esther Price. Further-

~ .

- 23

more, the testimény of Henry Price was clear that he had

never entered into an ‘agreent@at with Esther Price.

On our view;of the case, that. the court had no jurisdic- :

tion to conduct the hearing in Cambridge, the testimony

of Mrs. Clayman and Mrs. Esther Price should not be

considered. At best the testimony of Mrs. Price is vague

and the result of gross leading of the witness. In any -

event Mrs. Price in no way testified that Rosalie Price or’

David Price knew of any agreement between Mrs. Price

and Henry Price. : :

As to the testimony of Mr, Weiner the conirt limited its

“ effect to the credibility of Henry Price’ s tostaneny (Tr 7

of second day of Dedham hearing.) *

Weiner however did-testify that: he ‘alked with each

plaintiff and had informed each of the terms of the alleged

agreement.- This testimony is in direct conflict with that

of Rosalie, David and Henry and is unsupported by that

of Mrs. Price aid Mrs. Clayman. .

Accordingly the findings of the trial court quoted in the’

opinion of the court and set forth at the beginning of this —

letter are at odds = ‘the: agi preponderance of the-evi-

dence. | :

_ An examination of the testimony will reveal that the

question of the designation of a stenographer was raised

more than once. Especially at the hearing in Cambridge

is this true. (Tr. 71-72) On that occasion the trial judge

' -ruled that it was, a matter of discretion with him whether

or not to appoint a stenographer under G. L. (Ter. Ed.).

@. 214, Section 24 as amended by St. 1947, c. 365, Section 1.

The docket discloses that a formal request in writing had

been made which could have been acted upon.

It seems clear that the 1947 amendment was intended to

abolish the requirenient that the request -be made ‘‘before

any evidence is offeréd:’’ That phrase was eliminated by

St. 1947,'c. 365, section 1, so.that the relevant language of |

G. L. (Ter. Kd.) ¢. 314, section 24 reads as follows:

¢ .

“Upon an appeal, the testimony of witnesses who have

been examined orally before a justice of either court shall,

at the request of any party, be reported to the full court.’

It would seem apparent that the legislature by employ- .

ing the term ‘‘shall’’ intended to make this provision

mandatory and not a matter of the Trial Judges’ discretion.

There is afurther difficulty. There are in the record two

‘‘Final Decrees.’’ pp. 31, 38.° They are not consistent.

The earlier decree of December 19, 1965, (R. 31) ran against

the respondent Henry S. Price as executor and trustee.

The later decree of May 6, 1963, (R. 39) also ran against

Henry 8S. Price personally... The rescript purported. to.

affirm the decree of May 6, 1963.

The decree must conform to the frame of the bill.

'. Affirmative relief granted to a ‘respondent on a counter- _

claim must be consistent with and within the scope of the

counterclaim. ;

_ Medlinsky v Seis Cut Beef Co, 317 Mass.

25, 33.

In the instant case. the counterclaim ran only against

Henry S. Price as the executor of the will of Louis, N.

Price. (R. 23-24) Consequently the decree of May 6, 1963

against Henry S. Price was beyond the scope of the count »r-

claim. * | i '

In view of the foregoing considerations we most respect-

fully move that the court reconsider the case in the light of

the evidence in order to avoid what we feel to be a mis-

carriage of justice and a reflection upon counsel without

due consideration of the evidence.,

Ya Respectfully submitted,

JoserpH G. CRANE

_ Mownoe L. Inxer

JG@C :mmf | Joun D. O’Remxy, Jr.

”

25 Ct

Appendix iene

[Lerreneap oF SUPREME JUDICIAL Court. a,

ie March 18, 1965

_. Joseph G. Crane, Esquire i

‘ Monroe L. Inker, Esquire : : ae

John D. O'Reilly, Jr., Esquire. | or pier

' 41 Tremont Street

Boston, Massachusetts 02108 .

Dear Sirs:

Your request. for rehearing in case. No. 6514, Price v.

Price, has been received and will be considered by the full

court.

Yours: truly, ,

Raymonp S. Wrams

| Chief Justice

ec: John H. Fletcher Calver, Esquire | : :

Appendix F.

[LerrerHEap oF SUPREME JUDICIAL Court.]

| — 1, 1965 tg

Joseph G. Crane, Esquire | %:

Monroe L.-hker, Esquire

John D: O'Reilly, Jr., Esquire

41 Tremont Street.

Boston, Massachusetts 02108

Dear Sirs: on

as}

| Your requst: for rehearing in ease No. 6514, Price v.

Price, a been considered by the full court and is denied.

| Yours truly, |

R. S. WiLEins

ec: John H. Fletcher Calver, Esquire’ - 7

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.