Conley v. Fenelon

• Decision Date: 28 February 1929
• Citation: 266 Mass. 340,165 N.E. 382
• Parties: CONLEY et al. v. FENELON et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

266 Mass. 340

165 N.E. 382

CONLEY et al.

v.FENELON et al.

Supreme Judicial Court of Massachusetts, Middlesex.

Feb. 28, 1929.

Appeal from Probate Court, Middlesex County; John C. Leggat, Judge.

Proceeding by Katherine A. Fenelon and another, as administrators of the estate of Rose M. Fenclon, deceased, to probate the latter's will. From decrees fixing the counsel fees and expenses of Frederick T. Conley and others, attorneys, and ordering payments thereof to such attorneys by the special administrator, the heirs at law appeal. Reversed.Frederick T. Conley, of Boston, for petitioners.

Gertrude Ryan Halloran, of Boston, pro se.

Katherine A. Fenelon and J. F. Fenelon, for administrators.

RUGG, C. J.

These are appeals from decrees of the probate court fixing the amount of counsel fees and expenses incurred both by the attorneys employed by the proponents and by the attorney employed by the contestants in connection with litigation over the allowance of an instrument purporting to be the last will of the decedent, and ordering payments to be made therefor directly to the several attorneys by the special administrator of the estate of the decedent out of funds in his hands. In the record there is no report of the evidence heard by the judge, and there are no findings of facts made by him. Apparently no steps were taken to bring before us a report of the evidence or findings of fact. G. L. c. 215, §§ 11, 12, 18.

The only question presented for decision in these circumstances is whether the court had power to make the decrees upon any evidence that might have been presented under the petitions. Hale v. Blanchard, 242 Mass. 262, 264, 136 N. E. 102;Spring v. Curry, 260 Mass. 556,157 N. E. 599;Goss v. Donnell (Mass.) 161 N. E. 896.

Those named as executors in the instrument purporting to be the last will of the deceased presented a petition for an allowance for counsel fees and another for expenses, both incurred in prosecuting their petition for the allowance of the will, praying that both allowances be ordered paid out of the estate. Those petitions were allowed, specified amounts were determined to be due and ordered to be paid by the special administrator. No appeal was taken from those decrees and no question now arises concerning them. Thereaftertwo persons filed a petition in their own names, alleging that as attorneys at law they had performed professional services and had incurred expenses in behalf of the proponents of the instrument purporting to be the last will of the decedent, and praying that a further allowance on account thereof be made to them out of the estate. One of the petitioners bears the same name as one of the executors nominated in the instrument offered for proof as the will. Whether he is the same person does not appear by any evidence outside the identity of name and identity of allegations as to residence. Belknap v. Gibbens, 13 Metc. 471, 474;Ayers v. Ratshesky, 213 Mass. 589, 593, 594, 101 N. E. 78. In any event, he joins in the present petition solely in his capacity as attorney at law and not as executor or proponent of the will. A decree was entered on this petition awarding a substantial sum to the petitioners, for both counsel fees and expenses. At the same time there was filed a similar petition by another attorney at law, setting forth her employment by the heirs at law of the decedent to contest the allowance of the petition for the proof of the instrument purporting to be his last will, the performance of professional services and the disbursement of moneys for expenses, all to that end, and praying that an allowance therefor be made to her out of the estate of the decedent. Upon this petition a decree was entered for an allowance of a smaller yet considerable sum to this petitioner. See in connection with both these petitions Claffey v. Fenelon (Mass.) 161 N. E. 616. On the day following the entry of these two decrees the special administrator of the estate of the decedent filed a petition praying that he be authorized to pay the several sums thus awarded for counsel fees and expenses, and a decree was entered on that petition in accordance with its prayer. In no one of these petitions was the prayer that the allowance be made to a party to the litigation, but that it be made directly to the attorneys. All three decrees ran in the names of the attorneys and not in the names of the parties. The heirs at law seasonably appealed from each of those three decrees.

By G. L. c. 215, § 45, it is enacted: ‘In contested cases before a probate court or before the supreme judicial court on appeal, costs and expenses in the discretion of the court may be awarded to either party, to be paid by the other, or may be awarded to either or both parties, to be paid out of the estate which is the subject of the controversey, as justice and equity may require. * * *’

[4] Those named as executors in the instrument offered for probate as a will and the heirs at law of the decedent were parties to the proceedings for the proof of that instrument as a will. Ensign v. Faxon, 224 Mass. 145, 148, 112 N. E. 948. No other persons rightly are parties to a will contest, except in those rare instances where a legatee having interests adverse to those of other legatees, or adverse in some particular to those of the executor, is permitted in the discretion of the court to become a party, see Old Colony Trust Co. v. Bailey, 202 Mass. 283, 290, 88 N. E. 898;Blinn v. Pillsbury, 252 Mass. 197, 200, 147 N. E. 674; or where a legatee under a prior will is given less or nothing under the instrument in question. Crowell v. Davis, 233 Mass. 136, 123 N. E....