Buckingham v. Alden

• Decision Date: 31 January 1944
• Parties: BUCKINGHAM v. ALDEN et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

315 Mass. 383

53 N.E.2d 101

BUCKINGHAM

v.ALDEN et al.

Supreme Judicial Court of Massachusetts, Suffolk.

Jan. 31, 1944.

Petition by Margaret R. Buckingham, an insane person, by George B. Rowlings, temporary guardian, against Arthur O. Alden, permanent guardian, and another to revoke a decree appointing Arthur O. Alden permanent guardian of Margaret R. Buckingham. The petition was amended to show that it was brought in behalf of the ward by George B. Rowlings as her next friend. From a decree revoking the appointment and an order denying a motion to dismiss the petition, defendants appeal.

Affirmed.Appeal from Probate Court, Suffolk County; Dillon, Judge.

Before FIELD, C. J., and LUMMUS, QUA, and RONAL, JJ.

Harry F. R. Dolan and B. D. Levinson, both of Boston, for Margaret R. Buckingham.

W. V. Hyland, of Boston, for George B. Rowlings.

RONAN, Justice.

Theodore Roessle, the brother of Margaret R. Buckingham, an insane person, filed a petition in the Probate Court for Suffolk County, by his conservator, Arthur O. Alden, praying for the removal of Irene A. Hyde as guardian of the said Buckingham. The judge, after a hearing on October 20, 1941, granted the petition, removed the guardian and appointed Mr. Rowlings temporary guardian. The petitioner at that hearing was represented by Mr. Dolan. Alden was also in attendance. Upon a petition filed by Mr. Dolan for the appointment of Alden as permanent guardian of Mrs. Buckingham, a judge, other than the one who had heard the previous petition to remove Mrs. Hyde, on December 17, 1942, allowed the petition. The present petition, filed by Mr. Rowlings to revoke the decree of December 17, 1942, was allowed, after an amendment, by the judge who had heard the petition to remove Mrs. Hyde. These appeals are from the decree revoking the appointment of Alden and from an order denying a motion to dismiss the Rowlings petition.

We have a full report of the evidence. The judge made no report of the material facts, but his decision revoking the decree imports a finding of every fact essential to the entry of such a decree, Klefbeck v. Dous, 302 Mass. 383, 19 N.E.2d 308, and such findings, implied from the entry of the decree, are not to be reversed unless shown to be plainly wrong. Berry v. Kyes, 304 Mass. 56, 22 N.E.2d 622.

It appears from the report of the evidence that near the close of the hearing upon the petition to remove Mrs. Hyde as guardian, Mr. Dolan informed the judge that he had a petition and bond for the appointment of Alden as permanent guardian of Mrs. Buckingham. Mr. Dolan testified that he asked the judge whether he should file that petition and that the judge replied, ‘No, I will appoint somebody on this petition.’ There was other testimony, however, that the judge, in reply to Mr. Dolan's suggestion as to the appointment of Alden, stated that he would not appoint Alden in any circumstances. During the hearing on the present petition, the judge himself stated: ‘Oh, I think it is clear and beyond any question I said I wouldn't appoint Mr. Alden as guardian of this woman.’ A few days after the judge had removed Mrs. Hyde and appointed Mr. Rowlings as temporary guardian, Mr. Dolan appeared in court and told the judge that he was sorry that the judge ‘took that Buckingham case away from * * * [him] the other day and appointed Mr. Rowlings.’ Mr. Dolan had contended at the removal proceedings that the ward had a substantial claim against the estate of John Roessle, and in this interview with the judge which we have just mentioned the judge told Mr. Dolan that he had appointed a competent man who would not settle any claim that the ward might have without his, the judge's, knowing all about it. Mr. Dolan had thought that Mr. Rowlings had been appointed permanent guardian, and later, when he learned that he was only ‘temporary guardian,’ he filed a petition for the appointment of Alden as permanent guardian. At the time this petition was presented to and allowed by the second judge, Mr. Dolan made no mention of the fact that a temporary guardian had been appointed or that a judge of the Probate Court had previously refused to appoint Alden as permanent guardian. The first notice that Mr. Rowlings had as to the appointment of Alden was a letter dated January 12, 1943, from Mr. Dolan.

On evidence, the judge could find that Mr. Dolan was advised and knew at the hearing upon the petition to remove Mrs. Hyde that the judge would not appoint Alden as guardian of Mrs. Buckingham; that Mr. Dolan contended that Mrs. Buckingham had a claim against the Roessle estate, the details of which were familiar to Mr. Dolan; that Mr. Dolan was anxious to prosecute that claim; that he did not disclose to the second judge who appointed Alden the fact that the first judge had stated that he would not appoint him; that he failed to make such disclosure for fear that, if such information were given, the appointment would not be made; and that the appointment of Alden would not have been made if the second judge had known of the refusal of the first judge to appoint Alden.

Mr. Dolan was an officer of the court. He was bound to act fairly and in good faith in all matters and things concerning which he sought relief. The fact that another judge had refused to appoint Alden as guardian was a material fact which the judge who made that appointment had a right to know before acting upon the petition. There was an active duty upon counsel to inform him. His failure to do so was inconsistent with his obligation of fidelity and loyalty to the court. It would be a strange procedure if a party disappointed by the refusal of a judge to grant a petition could present the same of a similar petition to various other judges until he found one who, in ignorance of any adverse action previously taken by another judge, was permitted by the silence of counsel to deal with the matter as if it were being presented to the court for the first time. Such procedure tends to interfere with the orderly administration of justice and to bring the courts into disrepute. It puts a premium on silence when there is a plain duty to speak. The intentional withholding by counsel of facts within his knowledge relating to former proceedings in the case, when a disclosure of such facts to the judge is important to enable him to dispose properly of the matter before him, has frequently been dealt with in a summary manner. Falloon v. Superior Court of Los Angeles County, 79 Cal.App. 149, 248 P. 1057;Francis v. Superior Court of Los Angeles County, 3 Cal.2d 19, 43 P.2d 300;People v. Case, 241 Ill. 279, 89 N.E. 638, 25 L.R.A.,N.S., 578; Traistar v. Traistar, 306 Ill.App. 509, 29 N.E.2d 286;In re S_____, 115 N.J.Eq. 186, 169 A. 679;Matter of Heimsoth, 255 N.Y. 409, 175 N.E. 112;Matter of Gilchrist, 208 App.Div. 497, 203 N.Y.S. 720;In re Jones, 70 Vt. 71, 39 A. 1087. The Probate Court has the power by revoking the decree to correct the action that it was induced to take by the withholding of material facts. Waters v. Stickney, 12 Allen 1,90 Am.Dec. 122;Fuller v. Fuller, 261 Mass. 82, 158 N.E. 333;Goss v. Donnell, 263 Mass. 521, 161 N.E. 896;Odde v. Field, 297 Mass. 167, 8 N.E.2d 14;Parsekian v. Oynoian, 299 Mass. 543, 13 N.E.2d 409, 115 A.L.R. 470;O'Sullivan v. Palmer, 312 Mass. 240, 44 N.E.2d 958. See Commonwealth v. Aronson, 312 Mass. 347, 44 N.E.2d 679.

The Probate Court is a court of superior and general jurisdiction with reference to all matters in which it has jurisdiction, G.L. (Ter.Ed.) c. 215, § 2, and one of the subjects over which it has jurisdiction is all matters relating to guardianship. G.L.(Ter.Ed.) c. 215, §...