Counelis v. Counelis

• Decision Date: 28 March 1944
• Citation: 54 N.E.2d 177,315 Mass. 694
• Parties: COUNELIS v. COUNELIS et al. ANDRESON v. SAME.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

315 Mass. 694

54 N.E.2d 177

COUNELIS

v.COUNELIS et al.

ANDRESON

v.SAME.

Supreme Judicial Court of Massachusetts, Plymouth.

March 28, 1944.

Proceeding by Rosemia Apostolon Counelis, administratrix of the estate of Charles M. Counelis, deceased, for the settlement of her second and final account, and separate proceeding by Charles Andreson, a judgment creditor of such estate, against the administratrix and the Maryland Casualty Company, the surety on her bond, seeking to enforce its obligations against the administratrix and her surety in satisfaction of petitioner's judgment, which were heard together. From decrees settling the account and establishing Andreson's debt against the administratrix and her surety, the administratrix and her surety appeal; and from disallowance of certain requests for findings of fact, the surety appeals.

Orders in accordance with opinion.Appeals from Probate Court, Plymouth County; Poland, Judge.

Before FIELD, C. J., and DONAHUE, QUA, DOLAN, and RONAN, JJ.

G. L. Wainwright and G. L. Cohen, both of Brockton, for petitioner.

H. B. White, of Boston, for Maryland Casualty Co. and another.

DOLAN, Justice.

These two cases involving the estate of Charles M. Counelis, deceased, come before us upon the appeals of the administratrix of the estate and the surety on her bond as such from decrees entered in the Probate Court. The first case arose upon the second and final account of the administratrix. The second case arose upon the petition of Charles Andreson, a judgment creditor of the estate, against the administratrix and the Maryland Casualty Company, the surety on her bond, seeking to enforce its obligations against each of the respondents in satisfaction of his judgment. The cases were heard together by the judge on November 6 and 8, 1939. On November 8, 1939, the accountant and the surety company filed motions to amend the account in question by adding thereto the following items:

‘13. 11-9-38. Payment to Norman W. Sampson and Kenneth E. Sampson for undertakers' services $2422.41

‘14. 12-29-38. Payment to Clarence A. McLaughlin, Jr. and Elmer H. Fletcher, Commissioners in Insolvency-fees as Commissioners in Insolvency $250.00’

On November 28, 1939, these motions were denied and the accountant and the surety company appealed. See Murray v. Massachusetts Bonding & Ins. Co., 283 Mass. 15, 16, 17, 186 N.E. 377. On that day the judge entered a decree amending the account in other respects and allowing it as amended, disallowing in part or in whole items to the amount of $847.07, and charging the accountant with a balance of $992.07. (That balance should have been $847.07). The accountant and the surety company appealed. On the same day the judge also entered a decree on the petition of Andreson establishing his debt against the administratrix and the surety on her bond in the sum of $5,252.61, ‘being the amount of the petitioner's judgment and interest thereon to the date of this decree,’ and ordering each of the respondents to pay the petitioner that sum within thirty days from the date of the decree and that, in the event that payment was not so made, execution should issue. The respondent administratrix and the surety company appealed from that decree.

The evidence is reported and the judge made a voluntary finding of certain material facts. Thereafter the surety filed a request for findings of fact, which was denied except with relation to the presentation ‘at the hearing on the * * * account and in connection with the suit on the bond’ of the motions, hereinbefore referred to, to amend the account to include the amount paid by the surety to the undertakers and to the commissioners in insolvency on behalf of the administratrix. The surety appealed from the disallowance by the judge of certain requests for findings of fact. There was no error in this respect, since the judge could not be required to find particular facts. Berman v. Coakley, 257 Mass. 159, 162, 153 N.E. 463.

The evidence being reported, it is our duty under the familiar rule to examine the evidence and to decide the cases according to our own judgment, giving due weight to the findings of the trial judge which will not be reversed unless plainly wrong. Material facts found by the judge and those we find ourselves (see Lowell Bar Association v. Loeb, 315 Mass. 176, 178, 52 N.E.2d 27, and cases cited) may be summed up as follows: The administratrix was appointed and qualified on March 11, 1935, by giving bond with the respondent surety company as surety (hereinafterreferred to as the surety) in the sum of $10,000. She filed an inventory showing assets of uncertain value. The petitioner in the suit on the bond, hereinafter referred to as Andreson, obtained a judgment against her on February 11, 1936, and execution issued on April 2, 1936, for $4,841. His claim against the estate of the deceased was not a preferred one. On March 9, 1936, the administratrix filed a representation of insolvency in the Probate Court, but it was not until February 8, 1938, that a decree of probable insolvency was entered thereon and commissioners were appointed to examine claims. On that day a decree had been entered against the administratrix and the surety in a suit on the bond by Sampson and Sampson who had a judgment ($2,178.91) and execution based upon a debt for the expenses of the funeral of the deceased, and on November 9, 1938, the surety paid $2,422.41 in satisfaction of that decree in behalf of and in the presence of the administratrix. ‘The surety * * * has also paid $250. to the commissioners in insolvency as their fees.’ The commissioners in insolvency filed their report on October 17, 1938, but no action has been taken by the Probate Court thereon. The claims of common creditors allowed by the commissioners amount to $3,710.10. Andreson's judgment was not presented to the commissioners for allowance and is not dealt with in their report. In their report, however, the commissioners stated that the claim of the undertakers for funeral expenses had been presented to them, that it had been reduced to a judgment and that if they had jurisdiction over it they allowed it for the full amount of $2,178.91. In the course of the trial of the case the judge ‘rule[d]’ that this judgment stood as it was ‘a judgment against the estate.’ That was correct. In such case the execution ‘runs against the ‘goods and estate’ of the deceased in the hands of the administrator.' Breen v. Burns, 280 Mass. 222, 225, 182 N.E. 294, 295, and cases cited. On March 28, 1938, the restated first account of the administratrix had been allowed. In that account she was credited with a payment of $500 recovered by Andreson in part satisfaction of his execution. It is to be observed that this was allowed forty-eight days after the commissioners in insolvency...