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(162 N.E.)

unnecessary. No new appointment by the probate court is required or contemplated. No notice of the change need be given to that court. The interposition of that court for any purpose would be superfluous. The original appointment is to continue wholly unaffected by the fact that the state bank, in the case at bar the trust company, whose credit, standing and competency formed the basis of the judicial inquiry and action culminating in that appointment, has ceased to be, and another and different .corporation whose credit, standing and competency have never been the subject of judicial inquiry for this purpose, is to act in its place as executor. This seems to us to be the plain meaning of the words of said section 3 now under consideration construed according to the common and approved usuage of the language.

[10] (2) The next part of the final question is whether the provisions of said section 3 (44 U. S. Stat. at Large, pt. 2, pp. 1225, 1226), having the meaning just stated, are "in contravention of the law" of this commonwealth under which the trust company was organized. That section, according to its plain interpretation, has a signal force and effect in its application to appointment of fiduciaries by courts of this commonwealth. That section requires the courts of this commonwealth to recognize and accept, without inquiry or hearing, as fiduciary in place of a state trust company now gone out of existence, which was appointed by the court by solemn decree, a national bank which is a different corporation established under the laws of a different sovereignty, possessed of different powers, owing allegiance to a different jurisdiction, governed by different laws, subject to different governmental supervision, and controlled by different officers.

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That requirement relates to a subject in which all beneficiaries and others interested in estates of deceased persons and in the administration of trusts and of other funds for the benefit of minors, insane persons, and the aged and infirm under conservatorship have a vital interest. That requirement relates to a trust estate in process of settlement under the direction of the court. That requirement forecloses a hearing, where the interested parties may present their contentions in an orderly way and where a judicial decision may be rendered. That requirement is made by a pure legislative declaration without more. This touches the very foundations of judicial administration.

It is provided in part 1, art. 30 of the Declaration of Rights of this commonwealth that:

"In the government of this commonwealth, the legislative department shall never exercise the executive and judicial powers, or either of them; the executive shall never exercise the legislative

and judicial powers, or either of them; the judicial shall never exercise the legislative and executive powers, or either of them; to the end it may be a government of laws and not of men."

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That principle is thoroughly embedded in the governmental principles of this commonwealth on which law itself is founded. It often has been referred to in judicial decisions. It has been many times applied to the several departments of government. is of the very fiber of our institutions. illustrative of other adjudications, reference may be made to Case of Supervisors of Election, 114 Mass. 247, 19 Am. Rep. 341; Boston v. Chelsea, 212 Mass. 127, 98 N. E. 620; Dinan v. Swig, 223 Mass. 516, 520, 112 N. E. 91; Attorney General v. Pelletier, 240 Mass. 264, 296, 134 N. E. 407; In re Opinion of Justices, 251 Mass. 569, 615, 147 N. E. 681; Sheehan, Petition of, 254 Mass. 342, 345, 150 N. E. 231; In re Opinion of Justices, 237 Mass. 619, 623, 131 N. E. 29; Cosmopolitan Trust Co. v. Mitchell, 242 Mass. 95, 115, 116, 136 N. E. 403. Of course that principle has never been and cannot be questioned in the administration of the government of this commonwealth. The only difficulty that ever arises is in its proper application. The case at bar in respect to the clause of said section 3 now under consideration seems to us to present no difficulty in the application of that principle. То асcept that clause as binding would be directly contrary to the spirit and implications of said article 30. It would be opposed to the underlying notions of the civil society founded upon the Constitution of this commonwealth. The prohibition on the judiciary against surrendering its powers in compliance with legislative mandate is as imperative as that against exercising the executive or legislative powers. It is of no consequence in this connection from what legislative body the interference with the judicial function may come. Of course we do not decide that article 30 of the Declaration of Rights can override the Constitution of the United States or any act of the Congress enacted pursuant to that instrument. In re Opinion of Justices, 234 Mass. 597, 607, 127 N. E. 525, and cases cited; Id., 237 Mass. 591, 595, 130 N. E. 685; Florida v. Mellon, 273 U. S. 12, 17, 47 S. Ct. 265 (71 L. Ed. 511). We are now dealing only with the point whether this provision of said section 3, is "in contravention of the law" of this commonwealth.

We are therefore of opinion that it is "in contravention of the law" of this commonwealth in a fundamental sense for the courts to be compelled, in compliance with the mandate of a legislative body, to recognize as a fiduciary a different corporation from the corporation appointed such fiduciary, simply because, without judicial proceedings and by mere act of the stockholders

and officers (who may now have ceased to be such) approved by an executive government official, the corporation appointed such fiduciary has been consolidated with it, without any judicial determination as to the fitness of such different corporation to perform the duties of fiduciary.

[11] (3) The last part of the final question we have to decide is whether this provision of said section 3, as thus interpreted is within any power conferred upon the Congress by the Constitution of the United States and, if not within such power, whether it is separable from the rest of the act. Plainly the Congress has ample legislative power over national banks. It may require courts of the several states to appoint national banks as fiduciaries upon the same terms as domestic banks are appointed. First National Bank of Bay City v. Fellows, 244 U. S. 416, 37 S. Ct. 734, 61 L. Ed. 1233, L. R. A. 1918C, 283, Ann. Cas. 1918D, 1169; Burnes National Bank of St. Joseph v. Duncan, 265 U. S. 17, 44 S. Ct. 427, 68 L. Ed. 881. This court of course recognizes the ample jurisdiction of the Congress to confer upon national banks power to compete with state banks as declared in these two adjudications. Petition of Commonwealth-Atlantic National Bank of Boston, 249 Mass. 440, 442, 144 N. E. 443. This provision of said section 3 goes far beyond that. It does not declare a general policy for the state courts to pursue in performing their judicial functions with respect to national banks. It altogether abolishes the judicial function with respect to a subject essentially judicial in its nature viz., who shall act as fiduciaries under judicial appointment-and substitutes for that judicial function a legislative determination. The question is not whether the state court should hold a hearing and determine, in ac cordance with its settled procedure and the guiding federal statute requiring the appointment of national banks upon equal terms with domestic trust companies, whether the particular national bank sought to be appointed to the fiduciary position. It is indubitable that that ought to be done upon appropriate proceedings. It would be done in this commonwealth according to its most enlightened standards of judicial conduct. But the question is whether the state court must accept and recognize this national bank, never a party to any of its proceedings and unknown on its records, as its fiduciary, not as a result of judicial determination but as a result of the mandate of Congress. To recognize such a mandate in substance and effect is to approve the exercise of a judicial function by a legislative body. We understand that it has always been held by the Supreme Court of the United States that the Congress is prohibited by the Constitution of the United States from exercising judicial

functions. Kilbourn v. Thompson, 103 U. S. 168, 190, 191 (26 L. Ed. 377); Ocampo v. United States, 234 U. S. 91, 100, 34 S. Ct. 712 (58 L. Ed. 1231); Ex parte Grossman, 267 U. S. 87, 119, 120, 45 S. Ct. 332 (69 L. Ed. 527, 38 A. L. R. 131); Cosmopolitan Trust Co. v. Mitchell, 242 Mass. 95, 115, 116, 136 N. E. 403; Springer v. Government of the Philippine Islands, 48 S. Ct. 480, 72 L. Ed. decided by U. S. Supreme Court on May 14, 1928.

[12] This mandate of said section 3 not only is addressed to a judicial function but it relates to a subject outside the field of congressional legislation. It seems to us not open to debate that the general subject of the settlement of estates of deceased persons and the appointment of fiduciaries to administer trusts is within the exclusive jurisdiction of the state. No clause of the Constitution of the United States confers any such power upon the Congress. Article 1, § 8. That power is not forbidden to the states. Article 1, § 10. It is a matter purely of state rather than of national cognizance. It falls among the powers reserved to the states by article 10 of the Amendments. There is nothing contrary to this in First National Bank of Bay City v. Fellows, 244 U. S. 416, 37 S. Ct. 734, 61 L. Ed. 1233, L. R. A. 1918C, 283, Ann. Cas. 1918D, 1169, and Burnes National Bank of St. Joseph v. Duncan, 265 U. S. 17, 44 S. Ct. 427, 68 L. Ed. 881. Those decisions go no further than to hold that the Congress may require that the several states shall not discriminate against national banks in favor of state banks in the field of competitive business.

[13] The consequence is inevitable, in our opinion, that the Congress has no power by simple legislative fiat and without provision for judicial inquiry and decision to make it imperative upon any court of this commonwealth to recognize the present accountant, a corporation hitherto an utter stranger to its proceedings and records, as the officer and appointee of such court in a highly fiduciary capacity. We feel compelled to reach the conclusion that this clause of said section 3 (44 U. S. Stat. at Large, pt. 2, pp. 1225, 1226), here under discussion, is unconstitutional. This decision, while not required by Petition of Commonwealth-Atlantic National Bank of Boston, 249 Mass. 440, 144 N. E. 443; and Commonwealth-Atlantic National Bank of Boston, Petitioner, 260 Mass. ———, 158 N. E. 780, is in harmony with the principles on which those cases rest.

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[14] We are of opinion, however, that this clause is not the dominant feature of said section 3, but is subsidiary and incidental to its main object, which is to authorize the consolidation of state banks with national banks, that this clause is separable and distinct, that the rest of the section may stand

(162 N.E.)

EDWARDS et al. v. COCKBURN.

folk. June 14, 1928.

independently, and that there is no such connection between the valid and invalid parts as to support the view that the Congress would not have enacted the valid part Supreme Judicial Court of Massachusetts. Sufwithout the other. That has been held in Re Parsons' Estate (Petition of Worcester County National Bank of Worcester), 260 Mass. -, 161 N. E. 797, this day decided. It is within the principle of numerous decisions. International Text Book Co. v. Pigg, 217 U. S. 91, 113, 30 S. Ct. 481 (54 L. Ed. 678, 27 L. R. A. [N. S.] 493, 18 Ann. Cas. 1103);

Keller v. Potomac Electric Power Co., 261 U. S. 428, 444, 43 S. Ct. 445 (67 L. Ed. 731); Lawton Spinning Co. v. Commonwealth, 232 Mass. 28, 32, 121 N. E. 518; Ashley v. Three Justices of Superior Court, 228 Mass. 63, 81, 116 N. E. 961, 8 A. L. R. 463, and cases there collected. The final determination based upon all branches of this judgment is that said section 3 (44 U. S. Stat. at Large, pt. 2, pp. 1225, 1226), as we have interpreted its meaning and with the clause requiring the courts of this commonwealth to recognize the national bank as holding without new appointment the fiduciary position held by the trust company stricken down as unconstitutional, and the consolidation here in question made pursuant to the terms of said act of Congress, are not in contravention of the law of this commonwealth.

It is possible that the case at bar might be disposed of with the same result on the ground that, when the will of the testator was allowed and the trust company appointed executor, there was no law permitting a trust company to consolidate directly with a national bank, and that therefore the act of Congress under which this consolidation took place, having been enacted subsequently to the appointment of the trust company as executor, cannot be operative to affect the decree of the court previously entered and the rights of the beneficiaries of the estate of the testatrix under such decree. Wright v. Wright, 225 N. Y. 329, 336, 337, 122 N. E. 213. This point has not been argued. We have not considered it because it seems preferable to decide the case on the grounds already stated.

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[15] The result is that the Worcester County National Bank of Worcester, the accountant and petitioner in the case at bar, has not succeeded Fitchburg Bank & Trust Company as executor of the will of the testatrix and is not entitled to render an account as such executor. It can account only de son tort. The case upon this point is governed by Commonwealth-Atlantic National Bank of Boston, Petitioner, 260 Mass., 158 N. E. 780.

The question reported, namely, "whether the petitioner is entitled to render said account," is answered in the negative. Probate court instructed accordingly.

1. Appeal and error 320—Judge's voluntary report of material facts held equivalent to report of findings of fact (G. L. c. 215, § 11).

Voluntary report of material facts by judge had same effect as report of findings of fact, voluntarily reported facts, was not required to under G. L. c. 215, § 11, and judge, having

make findings.

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2. Wills 360-Exception to will was quired to be taken at time of its admission in evidence in will contest.

In proceedings for probate of will, exception to will was required to be taken at time of its admission in evidence.

3. Appeal and error ~~~662(3)—Judge's allowance of bill of exceptions does not render valid exception not taken at proper time.

Mere fact that judge believes an exception has been saved, and allows bill of exceptions, does not render the exception valid, if the record fails to show that it was taken at the proper time.

4. Wills 360-Reviewing court was not required to consider exception taken to admission of will after proponents had rested.

Where, in will contest, no exception was taken to admission of will until after proponents had rested and testimony was offered in behalf of claimant, record failed to show valid exception, and court was not required to consider it on appeal.

5. Wills 335-Will, after admission in evidence without exception, was entitled to receive probative force.

Will, having been admitted in evidence without exception in will contest, was entitled to receive probative force.

6. Adoption 12-Decree of adoption was Ineffective as to parent outside state, not notified of adoption proceedings, though valid as fixing legal status of child and adopting parent.

Where it did not appear that alleged father ever had notice of adoption proceedings, and he was described in petition as located outside state, court was without jurisdiction as to him, though decree was valid so far as it fixed the legal status of the child and its adopting parent. 7. Wills 288(1)-Claimant, filing appearance in probate proceedings as contestant, had burden to establish that she was heir and next of kin of deceased.

In proceedings for probate of will, claimant, filing appearance as contestant, had burden to prove that she was heir at law and next of kin of deceased, and failure to sustain burden warranted striking of her name from record.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 162 N.E.-15

8. Wills 386-Decree striking claimant's appearance as contestant in probate proceedings was conclusive, if supported by any substantial evidence.

Decree striking appearance of contestant in proceedings for probate of will was conclusive on appeal, if supported by any substantial evidence.

9. Appeal and error 1009(1)—Reviewing court in equity suit will not reverse, unless trial court's findings are unwarranted by any reasonable view of evidence, or plainly wrong. Where appeal is taken from final decree in suit in equity, reviewing court must examine evidence and decide case according to its judgment, giving due weight to trial judge's findings, 'and may not reverse, unless findings are unwarranted by any reasonable view of evidence or plainly wrong.

10. Appeal and error 1008 (3)-Reviewing court decides case according to its judgment, giving due weight to trial judge's findings, where evidence is wholly documentary.

Where evidence is wholly documentary, reviewing court will decide case according to its judgment, giving due weight to trial judge's findings, and occupying position of trial judge with respect to inferences from the evidence.

11. Courts 202 (5)-Where evidence was partly oral and partly by deposition in probate proceeding, reviewing court did not occupy position of trial court in drawing inferences from evidence.

Where testimony was partly oral and partly consisted of deposition, reviewing court did not occupy same position as probate judge who tried case, and could not disturb trial judge's determination as to weight and credibility of oral evidence.

12. Courts 202 (5)-Weight to be given entire testimony of witness in probate proceedings is for trial judge's determination.

In proceedings for probate of will, trial judge determines weight to be given entire testimony of witness.

13. Wills 300-Evidence in probate proceedings sustained finding that claimant failed to prove herself daughter of testatrix's brother, and was therefore not entitled to contest will. In proceedings for probate of will, in which claimant entered appearance as contestant, evidence held to sustain finding that claimant had not sustained burden of proving that brother of testatrix was her father, and that she was therefore not entitled to contest the will as heir or next of kin of testatrix.

14. Bastards 6-Evidence held to sustain finding as to domicile of brother of testatrix in proceedings by brother's alleged daughter to contest will as legitimate heir.

In proceedings for contest of will by one claiming as legitimate daughter of testatrix's brother, evidence held to sustain finding relative to domicile of brother, claimed by the contestant to have been domiciled in Arizona, where contestant was born.

15. Marriage ~50 (1)—Evidence held to sustain finding that there was no ceremonial marriage or common-law marriage between claimant's alleged father and mother, on claimant's assertion of right to contest will of alleged father's sister.

In proceedings for probate of will, in which claimant filed appearance as contestant of will, evidence held to sustain finding that there was neither a ceremonial marriage nor a commonlaw marriage between claimant's alleged father and mother, such as to give her right to contest will as legitimate daughter of testatrix's brother. 16. Marriage 50 (5)-Evidence of general repute and cohabitation of parties as married persons, though admissible, is not conclusive proof of marriage (G. L. c. 207, § 47).

Evidence of general repute or of cohabitation of parties as married persons, or of other facts from which marriage may be inferred, though admissible to prove marriage, under G. L. c. 207, § 47, is not conclusive, and may be rebutted by other evidence, to show that no marriage was in fact consummated.

17. Marriage ~50 (5)—Mere illicit cohabitation does not prove marriage (G. L. c. 207, § 47).

Mere illicit cohabitation between man and woman is not evidence of marriage, unless they cohabit as married persons, under G. L. c. 207, § 47.

18. Marriage 50 (5)-Proof of cohabitation of parties, accompanied by evidence that father deserted mother, and of her subsequent marriage without making claim against father for support, was insufficient to prove marriage (G. L. c. 207, § 47).

Evidence of cohabitation of parties, where accompanied by proof that father left mother and child, and that mother abandoned child and subsequently married another without making claim against father for support, was insufficient to prove common-law marriage, under G. L. c. 207, § 47, admitting proof of marriage by evidence of general repute or cohabitation of parties as married persons, in proceedings by the daughter to contest will of alleged father's sister on ground of claimant's legitimacy.

19. Marriage 51-Question of marriage of alleged father of claimant, seeking to contest will as legitimate daughter of testatrix's brother, was one of fact, and marriage was not conclusively proved by alleged father's statement (G. L. c. 207, § 47).

In proceedings to contest will by one claiming as legitimate daughter of testatrix's brother,

mere statement of the brother that he was married did not conclusively establish that relation, under G. L. c. 207, § 47, but question of marriage was one of fact, to be proved from all the evidence and reasonable inferences to be drawn therefrom.

20. Marriage 50(5)-Evidence of repute to prove marriage is considered as to its weight with reference to standards of living and character of people in community (G. L. c. 207, § 47).

Though evidence of repute is admissible to prove marriage, under G. L. c. 207, § 47, weight

For cther cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

(162 N.E.)

of such evidence is to be determined to a great degree by standards of living and character of people in community.

21. Bastards 6-One seeking to contest will as legitimate daughter of testatrix's brother failed to prove legitimacy by subsequent acknowledgment, where paternity of contestant and domicile of alleged father were not proved (Comp. Laws Ariz. Ter. 1877, par. 1890).

One seeking to contest will as legitimate daughter of testatrix's brother, who failed to prove that she was a child of the brother, or that he was domiciled in Arizona at the time of the alleged acknowledgment of her as his child after her birth there, was not entitled to contest will as legitimate heir, under Comp. Laws Ariz. Ter. 1877, par. 1890, on ground that parents had acknowledged her as their own, since statute applies only to parents of an illegitimate child, and not to persons not proved to be parents.

The claimant contends that she is the legitimate daughter of this brother by reason of either an actual or a common-law marriage with one Annie Leopold, and also by through his acknowledgment of her as his virtue of the legitimation of the claimant daughter, and that, accordingly, she is a niece

and heir at law and next of kin of the decedent. The judge of probate stated that on all the evidence he was not satisfied that John A. Crabtree was the father of the claimant; he allowed the motion to strike the claimant's appearance from the record, on the ground that she is not an heir at law and next of kin of Lotta M. Crabtree, and filed a "Memorandum of Decision and Voluntary Report of Material Facts." The claimant appealed from a decree allowing the motion to strike her appearance from the record. On April 2, 1927, she filed in the probate court a request that the judge report the material facts found by

Appeal from Probate Court, Suffolk Coun- him in allowing the motion, and to include ty; J. S. Wood, Judge.

Petition by Clarence R. Edwards and others for the probate of the will of Lotta M. Crabtree, contested by Carlotta Cockburn. From a decree allowing proponents' motion to strike her appearance from the record, contestant appeals. Affirmed.

L. Withington and J. B. Sullivan, both of Boston, for appellant.

F. H. Chase and R. P. Baldwin, both of

Boston, for appellees.

CROSBY, J. Lotta M. Crabtree died in Boston, September 25, 1924, leaving an instrument purporting to be her last will. Clarence R. Edwards and others, hereinafter referred to as the proponents, named as executors therein, filed a petition for the probate of her will in the probate court for the county of Suffolk. On November 5, 1924, Carlotta Cockburn, hereinafter referred to as the claimant, filed her appearance as a contestant of the will. On November 17, 1924, the proponents, as special administrators of the estate, filed a motion to strike her appearance from the record on the ground that she was not an heir at law or next of kin of Lotta M. Crabtree, hereinafter called the decedent. The issue presented by this motion was tried before the probate court. Much evidence was introduced by both parties in the form of oral testimony, depositions taken upon oral interrogatories, exhibits and other documentary evidence. The petition for probate of the will set forth the names and addresses of six persons, described as cousins of the decedent, as her only heirs at law and next of kin. The decedent had a brother, John Ashworth Crabtree, who predeceased her.

therein her requests for rulings of law, for findings of facts, and his disposition thereof. The judge ruled that the voluntary report of material facts stands on the same footing and has the same effect as a report of finding of fact made under G. L. c. 215, § 11, and declined to make the report requested. It also appears that the judge had previously passed upon all of the claimant's requests for rulings of law; that as to the request for find

ings of specific facts he ruled he could not be

required to make them and he denied them except so far as they appeared to have been set forth in his report of material facts.

[1] The ruling that the findings voluntarily made stand on the same footing as findings made under G. L. c. 215, § 11, was correct. Cohen v. Nagle, 190 Mass. 4, 76 N. E. 276, 2 L. R. A. (N. S.) 964, 5 Ann. Cas. 553; Howe v. Howe, 199 Mass. 598, 601, 85 N. E. 945, 127 Am. St. Rep. 516; Taylor v. Jones, 242 Mass. 210, 216, 136 N. E. 382; Boston Safe Deposit & Trust Co. v. Wickham, 254 Mass. 471, 473, 150 N. E. 223.

[2-4] Eighty-seven contestants appeared in the probate court against the allowance of the will; "seven were withdrawn. In each of the remaining cases the proponents of the will filed a motion to strike out the appearance on the ground that the contestant was not an heir at law, and after hearings each motion has been allowed except in the present case." It was found by the judge, and it was agreed by counsel in open court, that any evidence introduced in the previous hearings, above referred to, that was material or pertinent to the claim of kinship of the claimant Carlotta Cockburn, should be considered as in evidence in the case at bar. We are of opinion that upon examination of the record this finding was warranted. It would seem that the only evidence so previously in

For other cases see same topic and KEY NUMBER in all Key-Numbered Digests and Indexes

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