Coffey v. Rady

• Decision Date: 31 May 1929
• Citation: 166 N.E. 833,267 Mass. 301
• Parties: COFFEY v. RADY et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

267 Mass. 301

166 N.E. 833

COFFEY

v.RADY et al.

Supreme Judicial Court of Massachusetts, Middlesex.

May 31, 1929.

Appeal from Probate Court, Middlesex County; Charles N. Harris, Judge.

Petition in equity in the probate court by Mary Coffey against A. John Rady, administrator, and others. From an order sustaining defendants' demurrers, plaintiff appeals. Judgment in accordance with opinion.J. Joseph Foley, of Cambridge, for appellant.

J. A. Daly, of Boston, for appellees.

CARROLL, J.

This is a petition in equity in the Probate Court by Mary Coffey, as she is the executrix of the will of Mary Duggan, against the administrator with the will annexed of Andrew J. Rady, and Mary A. and Margaret L. Rady, legatees under the will of Andrew J. Rady. The petition alleges that Andrew J. Rady was the attorney of the petitioner in the probate of the will of Mary Duggan; that the petitioner gave Rady ‘with other moneys, $800 for legacies under the will of ‘Mary Duggan; that ‘said money was deposited by the said Andrew J. Rady in the Inman Trust Company, of Combridge as trustee for your petitioner’; that the legacies were not paid; that the petitioner has received from the trust company $640, ‘the rest of the money with interest having been mixed by the said Andrew J. Rady with his own property, or expended by him’; that Rady left as part of his estate the sum of $2,843.29, money on deposit in the trust company; that the petitioner is not informed whether the legatees under Rady's will have been paid; ‘that the correct balance due her [the petitioner] if the whole money had remained in the bank would have been $1186.66’; and that demand has been made on the petitioner for the payment of the legacies under the will of Mary Duggan.

The prayers of the petition were that, if no distribution of the Rady estate has been made, the administrator with the will annexed be ordered ‘to turn over to her the difference between $640 she received and the $1186.66 she should have received. And if distribution has been made that the two legatees aforesaid mentioned by compelled to turn over to your petitioner this amount.’

The defendant A. John Rady filed a demurrer, Mary A. and Margaret L. Rady also demurred, on the grounds that the facts stated did not entitle the plaintiff to relief against these defendants; that the plaintiff had a plain and adequate remedy at law, that the court had no jurisdiction of the subject matter. A. John Rady further demurred on the ground that Mary A. and Margaret L. Rady were improperly joined; and these defendants further demurred on the ground that A. John Rady was improperly joined. The judge of probate sustained the demurrers; the plaintiff appealed. No final decree was entered, but we treat the orders sustaining the demurrers as final decrees.

The plaintiff relies on G. L. c. 215, § 6. Under this section probate courts have jurisdiction in equity concurrent with the Supreme Judicial Court and the Superior Court ‘of all cases and matters relative to the administration of the estates of deceased persons, to wills, * * * or to trusts created by will or other written instrument, * * * and of all other matters of which they now have or may hereafter be given jurisdiction.’ The contention of the defendants is that under this section of the statute the Probate Court had no jurisdiction upon the allegations of the petition to grant relief to the plaintiff.

[1] As the attorney of the plaintiff Andrew J. Rady stood in a fiduciary relation to her. Manheim v. Woods, 213 Mass. 537, 100 N. E. 747.In the settlement of the estate of Mary Duggan he held a position of trust and confidence, and the money given him to pay the legacies under the will of Mary Duggan was a trust fund for which he could be held to account as a trustee. If he deposited this money in the bank with money of his own the plaintiff could at her election follow the mixed fund and enforce a charge thereon. Hewitt v. Hayes, 205 Mass. 356, 361, 91 N. E. 332,137 Am. St. Rep. 448.

The petition, however, is not brought to impress any funds belonging to the estate of Andrew J. Rady with a trust. It is not alleged that the fund made up of the trust money and his own money is in existence. It is merely alleged that, with the exception of the portion paid the plaintiff, the remainder of this fund was ‘mixed by the said Andrew J. Rady with his own property, or expended by him’; and there is no allegation that any part of the money given to Rady to pay the legacies under the will of Mary Duggan, or any part of the fund with which this money was mingled, is included in the $2,843.29 which was on deposit to the credit of Rady when he died. Furthermore, the jurisdiction of the Probate Court under G. L. c. 215, § 6, is confined to trusts created by will or other written instrument. See Derby v. Derby, 248 Mass. 310, 314, 142 N. E. 786.

The statute also gives the Probate Court jurisdiction concurrently with the Supreme Judicial Court and the Superior Court ‘of all cases and matters relative to the administration of the estates of deceased persons.’ The defendants contend that under this section of the statute the Probate Court had no jurisdiction to grant the relief sought. The Probate Court, as well as the Supreme Judicial Court and the Superior Court, has jurisdiction to compel the return of property belonging to an estate. It is settled that the remedy of equitable replevin is within the jurisdiction of the probate Court. Mitchell v. Weaver, 242 Mass. 331, 136 N. E. 166. In Nelson v. Peterson, 202 Mass. 369, 371, 88 N. E. 916,132 Am. St. Rep. 503, it was not questioned that there was jurisdiction in equity to compel the defendant to deliver to the plaintiff, as administrator, certain wearing apparel and ‘$500 in money,’ the property of the intestate. Equity has jurisdiction for an accounting when there is a fiduciary relationbetween the parties. See Brown v. Corey, 191 Mass. 189, 77 N. E. 838,Badger v. McNamara, 123 Mass. 117.

The Probate Court under the statute referred to could act in similar circumstances, and by virtue of the equity powers given it could require the administrator of...