Claflin, In re
| Decision Date | 08 January 1958 |
| Parties | In re William H. CLAFLIN, Jr., et al., Executors, Petitioners. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Loring P. Jordan, Jr., Boston, for petitioners.
Alfred Gardner, Boston, by leave of court, submitted a brief as amicus curiae.
Before WILKINS, C. J., and WILLIAMS, COUNIHAN, WHITTEMORE and CUTTER, JJ.
The executors of the will of Katharine W. Atkins, late of Belmont, by this appeal from a decree of the Probate Court disallowing their first account, raise for our determination a question of notice. The judge has reported the material facts found by him.
The executors qualified on December 8, 1953. The Second National Bank of Boston was appointed trustee under Article Fifth, and upon its resignation was succeeded by Second Bank-State Street Trust Company.
Article Fifth devised and bequeathed one half the residue to the trutee to 'establish a trust fund for my grandson, Edwin F. Atkins, of One Hundred and Twenty Thousand (120,000) Dollars, to pay him the net income thereof during his life and upon his death to pay over and convey the principal thereof to his issue then surviving by right of representation or, if there be no such issue, to my issue then serviving by right of representation.' Pursuant to another provision of Article Fifth, more of this half of the residue has now been added to the fund.
Edwin is believed to be domiciled in the District of Columbia. He is in the diplomatic service of the United States of America, and for some years has been stationed in Cairo, Egypt. His issue are two minor children.
On January 31, 1956, the executors filed their first account for the period commencing December 8, 1953, and ending December 31, 1955. In it they charged themselves with various receipts, asked credit for payment of sundry items, including debts, administration expenses, and distributions to legatees and to the trustee under Article Fifth, and showed a balance.
A citation issued, returnable February 28, 1956, in the usual form. Notice was ordered by delivering or mailing by registered mail a copy to all persons interested fourteen days at least before the return day; and if service was made by registered mail, unless it should appear that all persons interested should have received actual notice, by publishing. On the citation counsel for the executors certified that he had served as ordered by mailing and by publishing. In fact, counsel served by sending a copy by registered mail to the trustee under Article Fifth and to the other legatees and devisees. He did not serve, by delivering or mailing, on the beneficiaries under the trust except that he did serve by registered mail Edwin, who was also a legatee under another article.
On the return day the judge appointed a guardian ad litem for the minors and for persons unborn and unascertained, and the executors appealed. It later appearing at a conference with counsel that no notice had been given the minors, because the executors contended that notice to the trustee under Article Fifth was sufficient notice, the executors withdrew the appeal and the court revoked the appointment of the guardian ad litem.
On June 26, 1956, the court ordered a new citation to issue to the beneficiaries of the trust. This was returnable July 24, 1956, and was in the usual form ordering notice by delivering, or mailing by registered mail, a copy to all persons interested fourteen days at least before the return day.
Upon the second citation counsel for the executors made the following return: 'I have not made service of the within citation for the reasons: (a) That all legatees, devisees and all other persons entitled to share in the estate whose interests are not represented, except by the accountant--as the foregoing expression is used in G.L. (Ter.Ed.) c. 206, § 24, as amended--have been duly served with notice of the previous citation dated February 1, 1956; (b) That the trustee under said will, which received notice of the previous citation, so represents the beneficiaries under the trust; (c) That the beneficiaries under said trust since they are so represented are not entitled to notice of either citation and have not been given such notice.'
If the return had shown service in accordance with the order, the judge would have appointed a guardian ad litem for the minors and for persons unborn and unascertained. At it was, a decree was entered disallowing the account, 'all persons interested not having been duly notified.'
In Young v. Tudor, 323 Mass. 508, 83 N.E.2d 1, there was a petition for the allowance of a trustees' account. The statute then required notice to 'all persons interested.' G.L.(Ter.Ed.) c. 206, § 24, as appearing in St.1938, c. 154, § 1. Beneficiaries having contingent interests had not been notified. Our holding was that they were included within the comprehensive statutory requirement, and should have been given notice.
Soon after the decision in Young v. Tudor, G.L. (Ter.Ed.) c. 206, § 24, as appearing in St.1938, c. 154, § 1, was amended by St. 1950, c. 413, which provided: 'Upon application for the allowance of an account filed in the probate court such notice as the court may order shall be given by publication, unless all persons interested receive actual notice, and by delivering or mailing by registered mail a copy of the citation * * * (2) For accounts of executors and administrators with the will annexed to all legatees and devisees and to all other persons entitled to share in the estate whose interests are not represented except by the accountant * * *.'
The precise question is whether the beneficiaries are represented by the trustee so that notice of the petition for the allowance of the executors' account need not be given to them in addition to that given to the trustee. There is no conflict of interest between the trustee and the beneficiaries. Both trustee and beneficiaries are equally...
To continue reading
Request your trial
-
O'Brien v. Dwight
...of the allowance of those accounts, and therefore no guardians ad litem were appointed at that time. Claflin, petitioner, 336 Mass. 578, 581--582, 146 N.E.2d 914; Second Bank-State St. Trust Co. v. Linsley, 341 Mass. 113, 117, 167 N.E.2d 624. At that time the trustee had the right to rely o......
-
Bartlett v. Dumaine, 85-323
...rule that in matters involving the trust and the outside world the trustees represent the beneficiaries, see Claflin, petitioner, 336 Mass. 578, 146 N.E.2d 914 (1958), or whether the Dexter trustees must account directly to the Dumaines' beneficiaries under exceptions to the general rule wh......
-
Tucker v. Connors
...them for purposes of this suit. See Gulda v. Second Nat. Bank, 323 Mass. 100, 103, 80 N.E.2d 12, 15 A.L.R.2d 605; Claflin, petitioner, 336 Mass. 578, 581, 146 N.E.2d 914. 5. It is not clear that the final decree adequately binds Central to coperate with Miss Gleken in making conveyance to T......
-
Second Bank-State St. Trust Co. v. Linsley
...reason to believe that the accounts now presented for allowance are in anything but good order.' Following the decision in Re Claflin, 336 Mass. 578, 146 N.E.2d 914, a decree was entered allowing the first account of the executors. Later their second and final account, which showed a comple......