Cline v. Cline

• Decision Date: 07 January 1953
• Citation: 110 N.E.2d 123,329 Mass. 649
• Parties: CLINE v. CLINE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 123

110 N.E.2d 123

329 Mass. 649

CLINE v. CLINE.

Supreme Judicial Court of Massachusetts, Norfolk.

Argued Dec. 1, 2, 1952.

Decided Jan. 7, 1953.

Max J. Zieman, Boston, Maurice B. Ulin, Boston, with him, for petitioner.

George Alpert, Boston, for respondent.

Before QUA, C. J., and LUMMUS, RONAN, WILLIAMS and COUNIHAN, JJ. COUNIHAN, Justice.

This is a petition for discovery filed in the Probate Court under G.L. (Ter.Ed.) c. 215, § 44, as amended by St.1941, c. 323, § 1, and St.1943, c. 91. ¹ From an order of a judge dismissing the petition as matter of discretion the petitioner appeals. The evidence is not reported but the judge filed a report of material facts.

The issues before us are: (1) Was it within the discretion of the judge to dismiss the petition? (2) If it was discretionary, was that discretion exercised exercised by the judge who issued a citation upon the petition when it was filed?

We are of opinion that there was no error in the dismissal of the petition.

From the record it appears as follows: Herman Cline died testate on March 31, 1950, and Joseph F. Ford was appointed executor under his will. Herman and David Cline had been copartners doing business under the same of Cline Manufacturing Company. The petitioner, Albert H. Cline, is a beneficiary and trustee under the will of Herman. In December, 1951, Albert and another filed a petition in the Probate Court alleging in substance that Ford as executor had transferred to David the interest of the estate of Herman in the partnership business, in pursuance of a written agreement between Ford and David which was assented to by the petitioners in that case. There were further allegations that Ford and David had conspired between themselves for the fraudulent purpose of transferring this interest to David at an unfair price, and that they had not dealt openly and fairly with the petitioners.

On January 16, 1952, in support of that petition Albert filed this petition for discovery against David. In it he complained that with good cause he suspected that David had fraudulently received, concealed, embezzled, or conveyed away certain personal property of the estate of Herman and sought that David be cited to appear and be examined under oath upon the matter of the complaint. This petition was presented to a judge who ex parte indorsed upon it 'Let citation issue as prayed for.'

On February 20, 1952, the return day of the citation, David with counsel appeared before another judge and objected to the allowance of this petition. The petitioner had served on David a subpoena duces tecum requiring him to bring for examination voluminous papers, records, cancelled checks, relating to the conduct other documents relating to the conduct of the partnership business from January 1, 1945, to July 7, 1950. The hearing was continued until February 27, 1952. On both occasions counsel for the parties made statements of fact and argued. Apparently no testimony was taken. Counsel for the petitioner stated that he intended to examine David regarding the items mentioned in the subpoena. Counsel for David represented that such an examination would take many days and perhaps weeks with substantial expense to David, and that there was an adequate alternative. Later on February 27, 1952, this judge entered the following order: 'After a hearing the within petition is dismissed as a matter of discretion.'

We are of opinion that it was within the discretion of the judge to dismiss this petition. The statute provides that 'the court may [emphasis supplied] cite such suspected person * * * to appear and be examined on oath * * *.' It was said in Brennan v. Board of Election Commissioners of Boston, 310 Mass 784, at page 786, 39 N.E.2d 636, at page 637, with many citations, 'it remains true that 'may' is not an apt word to express a positive mandate. It is a word of permission and not of command. It should be construed, if possible, in accordance with its true signification. * * * In general, throughout our statutes, the distinction between words of permission or discretion and words of command, including the distinction between 'may' and 'shall', has been carefully observed. * * * We should not in any case lightly conclude that the distinction has been overlooked.'

Furthermore, the power conferred by this statute, c. 215, § 44, is analogous to the power exercised by the courts of chancery in England, upon a bill for discovery. McNulty v. Howe, 290 Mass. 597, 598, 195 N.E. 735. Indeed by the amendment by St.1943, c. 91, a proceeding under c. 215, § 44, shall be entitled 'petition for discovery.' Under English chancery practice 'Discovery is not a matter of right but is discretionary, and will not be permitted to be used in an oppressive manner.' Daniell's Chancery Practice (8th ed.) page 574. Petre v. Sutherland, 3 T.L.R. 275.

The case of Owens-Illinois Glass Co. v. Bresnahan, 322 Mass. 629, 79 N.E.2d 195, 13 A.L.R.2d 653, relied upon by the petitioner, is not authority to the contrary. That case only determined that a 'court of general equity jurisdiction has authority to grant * * * discovery'. 322 Mass. at page 632, 79 N.E.2d at page 197. It is true that in the opinion in that case there appears a quotation from Reynolds v. Burgess...