Allen v. Town of Plymouth
| Decision Date | 04 March 1943 |
| Citation | 47 N.E.2d 284,313 Mass. 356 |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
| Parties | JOHN B. ALLEN, JUNIOR, administrator, & another, v. TOWN OF PLYMOUTH & another. |
November 12, 1942.
Present: FIELD, C.
J., DONAHUE, QUA COX, & RONAN, JJ.
Fraud. Mistake.
Bond, Validity, Old age assistance bond. Mortgage, Of real estate: validity. Old Age Assistance. Public Welfare.
A suit by the administrator of the estate of a recipient of old age assistance against a town for cancellation of a bond and mortgage given by the recipient for repayment of the amount of the assistance could not be maintained on the ground that he had been entitled to assistance without giving the bond and mortgage and that they had been "required" of him by fraud or mistake at the time of his application for assistance, where, so far as appeared, he executed them without objection or thought of claiming an appeal to the appeal board and it did not appear that he was mistaken as to his rights respecting assistance.
BILL IN EQUITY filed in the Superior Court on November 5, 1941, by the administrator of the estate of George M. Schroeder and the administrator with the will annexed of the estate of Sarah F Schroeder seeking, among other things, cancellation and discharge of the bond and mortgage described in the opinion.
The defendants appealed from a final decree entered by order of Swift, J.
The case was submitted on briefs. A. P. Richards, for the defendants.
E. J. Campbell, for the plaintiffs.
COX, J. George M Schroeder and his wife made application on December 2, 1938 to the bureau of old age assistance of the defendant town, where they lived, for old age assistance, to which they were entitled under G. L. (Ter. Ed.) c. 118A, as then in force. See St. 1936, c. 436, Section 1; St. 1937, c. 440; St. 1938, c. 274, c. 285, c. 408, c. 467. At that time they had no property with the exception of their interests in the real estate upon which they resided, consisting of two parcels standing in their names as tenants in common, and one parcel standing in Schroeder's name. The first two parcels were, at the time the applications were filed, and had been for five years immediately preceding, assessed for $3,875, and the other parcel for $25. Old age assistance was granted, and a bond and mortgage of the real estate were required of the Schroeders.
Schroeder died on June 20, 1939, and his wife, on October 6, 1940, both having been paid, from the date of their applications, old age assistance amounting to something over $900. They had no children. The plaintiff is the administrator of Schroeder's estate and administrator with the will annexed of his wife's estate.
Demand was made on the plaintiff for the payment of $900 and the defendants threatened to foreclose the mortgage that had been given, which recites that it is "to secure the payment of aid and assistance rendered" to the Schroeders, or either of them, by the town, as provided in their bond of even date. The bond states no penal sum, but recites that the Schroeders are bound to the town treasurer "for aid and assistance rendered to . . . [them], or either of . . . [them], by said town, to be paid to . . . [the town] treasurer, or his successors in office; to the true payment whereof, . . . [they], jointly and severally, bind . . . [themselves, their] heirs, executors, and administrators." The condition of the bond is that if the Schroeders shall "repay or cause to be repaid to the . . . treasurer . . . such sums advanced at any time by any duly authorized officer of . . . [the town], to . . . [them], or either of . . . [them], or any sums of money expended by such officer for the assistance or benefit of . . . [them], or either of . . . [them], under the provisions of . . . Chapter 436, and any amendments thereto; then this obligation to be void, otherwise to remain in full force and effect."
The suit was heard on a statement of agreed facts, and the defendants appealed from the final decree, which, in effect, stated that the plaintiff, as administrator of Schroeder's estate, was not indebted to the town, but that, as administrator of Mrs. Schroeder's estate, he was indebted to the town in the sum of $481.90, and provided that, upon payment by the plaintiff of this sum to the town treasurer, he should execute and deliver to the plaintiff in his administrative capacity a discharge of the mortgage, that the bond that had been given likewise should be discharged and cancelled upon the payment of said sum, and that in all other respects the bill should be dismissed. The plaintiff did not appeal. See Royal Indemnity Co. v. Perry, 296 Mass. 149 , 153, and cases cited.
The amendment of Section 4 of the old age assistance law (St. 1936, c. 436, Section 1), by St. 1938, c. 467, merely changed the amount of equity, computed on the basis of assessed valuation of an applicant's real estate, from $2,000 to $3,000. This fact will be kept in mind when reference is made hereinafter to the old age assistance law in force and effect when the applications for assistance were made in the case at bar. This law provided, in Section 4, that the ownership of an equity in real estate upon which an applicant resided should not disqualify him from receiving assistance, provided that if such equity, computed on the basis of assessed valuation, exceeded $3,000 in each of the five years immediately preceding his application, the board or bureau of the town rendering such assistance should, through the appropriate town official, require such applicant to execute a bond "in a penal sum at least equal to the amount of the equity in excess of three thousand dollars," running to the treasurer of the town, conditioned on repayment to such town of "all amounts of such assistance, without interest, such bond to be secured by mortgage of the applicant's real estate." (See, now, St. 1941, c. 729, Section 4.) See Worcester v. Quinn, 304 Mass. 276; Hinckley v. Barnstable, 311 Mass. 600 . The law, by Section 10, gave the department of public welfare power to make such rules relative "to notice and reimbursement, and such other rules relating to the administration of . . . [it], as it deems necessary." Rule 5 of the department, in effect on the date of the applications for assistance in the case at bar, is set out in the statement of agreed facts as follows:
The law, by Section 3, provided, among other things, that any person aggrieved by the failure of a town to render adequate assistance, or by the failure of the board of a town to approve or reject an application for assistance within thirty days after receiving such application, should have a right of appeal to a board designated in the act, called the appeal board, which should forthwith make a through investigation with authority to act upon any appeal in relation to the matter of denial of assistance by a local board, the matter of a change in the amount of assistance given, and the matter of withdrawal of assistance. In all cases of appeal an opportunity for a "fair hearing" by the appeal board was required, and its decisions, which had to be rendered not later than sixty days after claim of appeal was filed, were to be binding upon the local board involved and had to be complied with by it. St. 1936, c. 436, Section 1. St. 1937, c. 440, Section 3. St. 1938, c. 285.
The parties, in the main, have addressed their arguments to the question of the construction of said Section 4 and the force and effect of said rule 5 of the department of public welfare. One question presented by the defendants, in effect, is whether the Schroeders were entitled to receive old age assistance without giving the bond and mortgage. We are of opinion, however, that it is unnecessary to decide this question, involving as it does the effect or validity of said rule.
Where a case is submitted upon a statement of agreed facts, this constitutes a waiver of all objections to the form of procedure, Kennedy v. B. A. Gardetto, Inc. 306 Mass. 212 , 220, 221, and cases cited, but we are of opinion that the facts do not entitle the plaintiff to relief.
Old age assistance was granted upon application, and a bond and mortgage were "required" of the Schroeders. Apart from this and the facts stated as to the ownership and assessed value of their real estate and the lack of any other property, nothing further appears as to the circumstances under which the bond and mortgage were required. For all that appears, the applications were filed and the assistance was granted upon the execution of the bond and mortgage that were required. There is nothing to indicate that the Schroeders were in doubt as to their rights, or that they gave them any thought. Obviously, they were making application for assistance under the provisions of a statute of comparatively recent...
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