O'Grady v. McCormack

BLODGETT, P. J.

Heard upon motion to strike out all reasons of appeal except the fourth.

The fourth reason of appeal sets forth:

“Fourth. Because said alleged order of distribution in said decree of December 17th complained of is not explicit and definite and does not find and designate who the legal heirs are, if any, of Francis (alias Frank) McCormack and the respective share each of said heirs should receive.”

Six reasons of appeal are set forth, all except the fourth, which is not complained of, and the sixth, attacking the jurisdiction of the Probate Court to enter such decree.

“Sixth. Because said intestate, Frances McCormack in his life time by ‘a gift causa mortis’ gave to said Elizabeth O’Grady such of his estate as is represented by the alleged balance of 82,591.31.”

It is difficult to understand how the determination of such a claim by the administratrix can be made on an appeal from the decree of distribution. If a gift causa mortis had been made by intestate there would be no estate to administer. There is nothing in the record submitted to show that such a claim had been made to the Court and passed upon. What happened in the Probate Court previous to the decree of distribution does not appear upon the record.

The Court is of the opinion that this sixth reason of appeal should be struck out, and that the other reasons of appeal should stand.