Allen v. Mazurowski

• Court: Supreme Judicial Court of Massachusetts
• Citation: Allen v. Mazurowski, 317 Mass. 218, 57 N.E.2d 544 (Mass. 1944)
• Decision Date: 26 October 1944
• Parties: HORACE E. ALLEN, public administrator, v. FALICJA MAZUROWSKI & others.

317 Mass. 218

57 N.E.2d 544

HORACE E. ALLEN, public administrator, v. FALICJA MAZUROWSKI & others.

Supreme Judicial Court of Massachusetts, Hampden.

October 26, 1944

September 21, 1944.

Present: FIELD, C.

J., QUA, DOLAN WILKINS, & SPALDING, JJ.

Executor and Administrator, Distribution. Evidence, Presumptions and burden of proof. Death. Funds in the possession of a public administrator of the estate of a

Massachusetts decedent, who died in 1942 and had been in correspondence with his wife and children in Poland until 1939 when postal communications with residents there were suspended, where there had been no further available information respecting the widow and children up to the time of a petition for distribution in 1943, should be ordered distributed among them, and any sum unclaimed after six months should be ordered placed on deposit under G. L. (Ter. Ed.) c. 206 Section 25; G.

L. (Ter. Ed.) c 194, Section 10, was not applicable.

PETITION, filed in the Probate Court for the county of Hampden on November 10 1943.

The case was reserved and reported by Stapleton, J. G. B. Robinson, Assistant Attorney General, for the Treasurer and Receiver General.

D. E. Sullivan & J.

J. Sullivan, for Falicja Mazurowski and others, submitted a brief.

DOLAN, J. This is a petition by the public administrator of the estate of Leon Mazurowski, deceased, intestate for distribution of the balance of $2,106.14 in the hands of the petitioner.

The report of the judge discloses the following facts. The petitioner was appointed public administrator of the estate of Leon Mazurowski by decree dated September 8, 1942. The petition for distribution was filed on November 10, 1943, and recites that the balance in the hands of the petitioner remains to be distributed among persons "unascertained, whose names, places and [sic] residence and relationship to the deceased are unknown," and that therefore distribution should be made to the "Treasurer and Receiver General of the Commonwealth of Massachusetts, to be held for the benefit of those who may later prove their claim." The prayer of the petition is that distribution be decreed "among such persons as may be proved to be entitled thereto according to law." The Attorney General appeared for the Treasurer and Receiver General of the Commonwealth (G. L. [Ter. Ed.] c. 194, Section 4), and counsel designated by the alien property custodian appeared for and in behalf of Falicja, Joseph, Bronislawa and Irene Mazurowski, "persons within enemy occupied territory." The following facts were agreed in a written stipulation of the parties. The decedent had a wife, Falicja, and the three children above named. They resided in Poland when last heard from in 1939. Written communications had been "exchanged between the decedent and his wife and children prior to the time of the occupation of Poland by the German army in September and October of 1939." On October 17, 1939, by order of the Postmaster General of the United States, all postal communications with residents of Poland were suspended, and, by reason thereof, "no information has been or is now available to determine whether the widow of the decedent or his children or any of them, are living or were living on August 16, 1942." The judge, reciting that it was "impossible to determine whether or not the persons mentioned in the `stipulation of facts' were alive on the death of . . . [the decedent]," reserved and reported the evidence and all questions of law for the consideration of this court. (See G. L. [Ter. Ed.] c. 215, Section 13.)

The Attorney General contends that the petitioner should be ordered to turn over the balance in his hands as public administrator of the estate of the decedent to the Treasurer and Receiver General of the Commonwealth, asserting that the provisions of G. L. (Ter. Ed.) c. 194, Section 10, so require. Counsel for the respondents Falicja, Joseph, Bronislawa and Irene Mazurowski contend that a decree should be entered in the usual form ordering distribution to them in the proper proportions prescribed by G. L. (Ter. Ed.) c. 190, with directions for the deposit in a savings bank, in the name of the judge of probate, of the sum to which each is entitled to accumulate for his or her benefit. See G. L. (Ter. Ed.) c. 206, Section 25.

General Laws (Ter Ed.) c. 194, Section 10, relied on by the Attorney General, has no application to the facts in the present case. That statute requiring a public administrator, after the estate has been fully administered, to deposit any balance remaining in his hands with the Treasurer and Receiver General, to be held by him for the benefit of those who may have lawful claims thereto, and providing that within six years thereafter the...