Thomas v. Gray

GRIFFIN, J. On July 30, 1930, Marie Lees (Thomas) executed an assignment to Attorney E. W. Brewer, Jr., Gordon Gray, Walter Ames and J. G. Driscoll, Jr., of an undivided 30 per cent of her right, title and interest in the Estate of Jean Cazaurang, deceased, and therein authorized the superior court to make distribution accordingly. On April 5, 1935, Marie Lees (Thomas) substituted A. G. Reily, Esq., as her attorney in the place and stead of Messrs. Gray, Ames & Driscoll. Later, Marion P. Betty, Esq., was substituted in his stead. One James T. Phillips, Esq., claimed an assignment from Marie Lees (Thomas) of 2 per cent of the net proceeds of her interest in the estate for services rendered and to be rendered by him. After several hearings on a petition for distribution and upon the objections thereto by the above entitled claimants, the trial court, on February 23, 1944, entered its decree which, among other things, awarded claimants Gray, Ames & Driscoll and E. W. Brewer, Jr., 15 per cent of 90 per cent of the estate of Jean Cazaurang, deceased, available for distribution, and also awarded claimant James T. Phillips 2 per cent of 90 per cent of the amount available. Claimants appealed from the judgment in its entirety. Marie Lees (Thomas) personally and as administratrix, appealed from that portion of the judgment making any allowance to those claimants.

This comes before us now on a motion of Marie Lees (Thomas) for an order augmenting the record on appeal.

The affidavit of Marion P. Betty, in support of the motion, recites that certain proceedings were omitted from the record. One point raised on the appeal is that the trial court was without jurisdiction while sitting in probate to try the issues tendered by the respective claims of assignments above mentioned. In this connection, counsel for the administratrix argues (a) that on June 19, 1942, the matter of the settlement of the final account and petition for distribution came on for hearing in department 5 of the superior court; that claimants had filed objections thereto and that they argued for recognition of their claimed assignments. He then sets forth certain discussion which he claims took place between all counsel and the court wherein it was contended, by him, that the probate court had no jurisdiction to hear the matter; that objection was made thereto on the grounds stated and that the court then allowed the administratrix to file additional plead[3]ings by way of a petition for “disallowance of assignments.”

It is next represented to us in paragraph (b) of the affidavit of Marion P. Betty that at the hearing of the above mentioned petition the following discussion and rulings took place: that on Monday, July 7, 1941, a claimed “partial minute entry” was made by the clerk of the court which, in effect, recited that counsel for the administratrix, in open court, orally demanded a jury trial on the petition for allowance of assignments ; that on July 8, 1941, arguments on objections to such jury trial were proceeded with and later continued to July 9, 1941; that on that day further argument thereon ensued and that the trial court denied such application for a jury trial and denied the administratrix’s demand for a bill of particulars.