Ballard v. Maguire

• Decision Date: 21 September 1944
• Citation: 56 N.E.2d 891,317 Mass. 130
• Parties: BALLARD et al. v. MAGUIRE et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

317 Mass. 130

56 N.E.2d 891

BALLARD et al.

v.MAGUIRE et al.

Supreme Judicial Court of Massachusetts, Suffolk.

Sept. 21, 1944.

Proceedings in the matter of the estate of Marion Seaverns Kelley, deceased, on petition by Charles M. Ballard and another, trustees, to vacate the decree entered on trustee's first account, opposed by Thomas F. Maguire and others. From the decree on the first account and from a decree dismissing the petition, trustees appeal.

Appeals dismissed.Appeal from Probate Court, Suffolk County; Prest and Dillon, Judges.

Before FIELD, C. J., and QUA, DOLAN, and RONAN, JJ.

D. Burstein, of Boston, for petitioners.

E. Kurland, of Boston, for respondents Beatrice E. Bliss and Alice S. Byrnes.

DOLAN, Justice.

These are appeals, by the trustees under the will of Marion Seaverns Kelley, from two decrees entered in the Probate Court. The first appeal is from the decree entered on November 12, 1940, on the trustees' first account. The second appeal is from a decree dated April 29, 1941, denying and dismissing a petition of the trustees that the decree entered on their first account be vacated and further hearing had thereon. These appeals were entered in this court on September 2, 1943, and were argued before the court on January 3, 1944. The latter appeal was waived when the case was argued here. The respondent Bliss moved that the appeals be dismissed on the ground that the appellant petitioners are not persons aggrieved within the meaning of G.L. (Ter.Ed.) c. 215, § 9, and hence are not entitled to appeal. See Pattee v. Stetson, 170 Mass. 93, 94, 48 N.E. 1022;Finer v. Steuer, 255 Mass. 611, 617, 152 N.E. 220;Weston v. Fuller, 297 Mass. 545, 548, 9 N.E.2d 538, and cases cited.

The only respect in which the accountants contend that they are aggrieved is by the action of the judge in decreeing that an item of $12,866.21 accounted for by them as ‘Accumulated net income * * * turned over to * * * [them] by Executrix’ be disallowed and that the said sum be credited to the principal of the trust estate.

It is settled that ‘In order to give a right of appeal * * * it must appear that the party appealing has some pecuniary interest, or some personal right, which is immediately or remotely affected or concluded by the decree appealed from.’ Lawless v. Reagan, 128 Mass. 592, 593;Hayden v. Keown, 232 Mass. 259, 261, 122 N.E. 264. ‘A party aggrieved is one whose pecuniary interest is * * * affected by the decree; one whose right of property may be * * * divested by the decree.’ Wiggin v. Swett, 6 Metc. 194, 197,39 Am.Dec. 716. See Nesbit v. Cande, 206 Mass. 437, 440, 92 N.E. 766.

The accountant Hurley (the cotrustee) has no pecuniary or beneficial interest in the trust...