Dowd v. Morin

• Decision Date: 04 January 1985
• Citation: 471 N.E.2d 120,18 Mass.App.Ct. 786
• Parties: David D. DOWD, administrator, v. Christopher J. MORIN et al. 1 (and a companion case 2 ).
• Court: Appeals Court of Massachusetts

Page 120

471 N.E.2d 120

18 Mass.App.Ct. 786

David D. DOWD, administrator, v. Christopher J. MORIN et al. ¹ (and a

companion case ²).

Appeals Court of Massachusetts, Suffolk and Worcester.

Argued Jan. 17, 1984.

Nov. 19, 1984.

Further Appellate Review Denied Jan. 4, 1985

Roger J. Brunelle, Worcester, for Christopher J. Morin et al.

David D. Dowd, Boston, pro se.

Before BROWN, KASS and WARNER, JJ.

WARNER, Justice.

These consolidated appeals from actions by the Probate and Superior Courts involve a dispute between the estate and heirs of a guardian and the former wards of the guardian about the possible interests of the wards in real estate improved by the guardian with funds of the wards.

1. The Probate Court proceedings. By decree of February 15, 1963, Thomas B. Dowd was appointed as the guardian of the person and property of his minor nephews and niece, Christopher, Gregory and Mary Louise Morin (Roche). ³ Dowd took the children into his home to reside with his wife and seven children. It was necessary to enlarge the home to accommodate the wards. To that end, Dowd filed a petition seeking the approval of the use of the wards' funds. After hearing, and with the assent of a guardian ad litem appointed to represent the wards' interests, a decree was entered on June 25, 1964, authorizing, among other things, the expenditure of the wards' funds in a sum not to exceed $25,000 for the purpose of providing living accommodations for the wards in Dowd's home. The youngest of the wards reached majority in 1971, and Dowd subsequently distributed the balance of the guardianship funds. Dowd died on February 19, 1976, never having filed an account of his guardianship.

On the petition of Christopher and Gregory Morin, an order entered on October 31, 1979, directing Dowd's administrator with the will annexed to render an account of Dowd's guardianship. See G.L. c. 205, § 7A. A first and final account was filed on December 10, 1981. Items 21 through 26 of schedule B of the account showed total expenditures of $24,772.31 for "work on house"; ⁴ schedule C showed a zero balance. See G.L. c. 206, § 2. Notice of the presentation of the account was mailed to and received by the former wards. See Mass.R.Civ.P. 72(b)(1), 371 Mass. 911 (1977); G.L. c. 206, § 24(3). ⁵ No appearance or objection to the account was filed, see Mass.R.Civ.P. 72(b)(1)(A) & (C), and a judgment allowing the account as filed was entered on January 14, 1982. See rule 72(b)(7).

On December 20, 1982, Christopher and Gregory Morin filed a motion and an "additional motion" for relief from the judgment allowing the account, "pursuant to rule 60(b)." On appeal they argue the following grounds: (1) failure to give notice to their attorney of record on the petition to render the account, (2) fraud or "constructive fraud," (3) failure to serve notice on all persons interested pursuant to G.L. c. 206, § 24, and (4) manifest error in the failure to show a balance due in schedule C of the account. On the same day Kathleen Morin, the wife of Christopher, filed a motion asking that the account be reopened for failure to give notice to her and the minor children of Christopher as his heirs presumptive. See G.L. c. 206, § 24(3). The Probate judge made findings of fact and conclusions of law and denied the motions. The moving parties have appealed.

2. The Superior Court proceedings. On March 12, 1980, after the Probate Court order to render a guardianship account but before the filing of that account, Christopher and Gregory Morin commenced an action in the Superior Court against the children of Dowd ⁶ seeking to enforce equitable interests in the real estate improved by Dowd with the wards' funds. ⁷ On July 26, 1982, the plaintiffs' motion for partial summary judgment and the defendants' motion for full summary judgment were denied. On November 9, 1982, the defendants' motion to dismiss under Mass.R.Civ.P. 12(b)(1), 365 Mass. 755 (1974), for lack of subject matter jurisdiction was denied. On motion of the defendants for rehearing, the same judge who had heard the original motion ordered dismissal of the action, and a judgment entered accordingly. The plaintiffs have appealed from that judgment. ⁸ In his memorandum of decision on rehearing, the judge concluded, on res judicata principles, that the judgment of January 14, 1982, of the Probate Court allowing the first and final guardianship account precluded the plaintiffs from litigating the issue raised in the Superior Court action. ⁹

3. The motions for relief from the Probate Court judgment allowing the first and final guardianship account. At the threshold, we note that Mass.R.Civ.P. 72, 371 Mass. 910 (1977), expressly preserved the well-settled rule that judgments on probate accounts may be impeached only for fraud or manifest error. While making the provisions of rule 60 applicable to judgments on contested and uncontested accounts, rule 72(b)(4) & (7) provide that "the provisions of G.L. c. 206, § 24, shall govern the granting of any relief under Rule 60(b); and Rule 60(b)(3) shall not apply." The reopening of account proceedings, therefore, continues to be governed by the "fraud or manifest error" standard of G.L. c. 206, § 24, as appearing in St.1950, c. 413, and the judicial construction of the terms. See Massachusetts Probate Manual, c. XII, at 22 (2d ed., MCLE, 1983). Of course, if it appears that notice was not given to an interested person as required by § 24, the proceedings "can be reopened in order to give him his day in court." Azarian v. First Natl. Bank, 383 Mass. 492, 494, 423 N.E.2d 749 (1981). Porotto v. Fiduciary Trust Co., 321 Mass. 638, 642- 643, 75 N.E.2d 17 (1947). See also Child v. Clark, 231 Mass. 3, 6, 120 N.E. 77 (1918) (intentional failure to name and give notice to interested persons constituted fraud); O'Sullivan v. Palmer, 312 Mass. 240, 44 N.E.2d 958 (1942)(same).

"To justify revocation of [a judgment] it is not enough to show that available evidence was not offered, that material contentions were not properly presented, or that the issues were not rightly decided." Reynolds v. Remick, 333 Mass. 1, 9, 127 N.E.2d 653 (1955). A court may correct manifest error in a judgment or revoke a judgment in which fraud either induced the court to take jurisdiction which it did not have or deprived an interested person of his day in court. Id. 333 Mass. at 10, 127 N.E.2d 653. See O'Brien v. Dwight, 363 Mass. 256, 282, 285-289, 294 N.E.2d 363 (1973), and cases cited. See also Naughton v. First Natl. Bank, 4 Mass.App. 624, 628, 356 N.E.2d 1224 (1976). ¹⁰

We deal first with the motion of Christopher Morin's wife that the account proceedings be opened because neither she nor Christopher's minor children were given notice of the presentation of the account for allowance. ¹¹ General Laws c. 206, § 24(3), provides that, in the case of accounts of guardians and conservators, notice must be given "to the ward and to the persons who would be his heirs were he to die intestate" at the time of the giving of the notice (emphasis supplied). The obvious purpose of the statute is to protect the interests of the persons likely to inherit the estate of one who may be under a legal disability in the event of death prior to the removal of the disability. ¹² In this context the heirs might be thought to be in a position similar to those with contingent interests. Cf. Young v. Tudor, 323 Mass. 508, 511-512, 83 N.E.2d 1 (1948). Here, Christopher reached majority in 1969, and the guardianship then terminated as to him. The notice of presentation of the account was sent to him in 1981 at a time when he was no longer the ward and his heirs presumptive had no protectable interest under § 24. See Kehoe, Allowance of Probate Accounts, 59 Mass. L.Q. 315, 325-326 (1974); 2 Newhall, Settlement of Estates and Fiduciary Law in Massachusetts § 399, at 581 (4th ed.1958).

Christopher and Gregory argue that the Probate Court judgment should be vacated because there was manifest error in the failure to give notice of the presentation of the account for allowance to their attorney, who, they say, had entered an appearance in the proceeding and was also a "person interested" within the meaning of G.L. c. 206, § 24. The argument on the first point is that since the attorney had entered an appearance on the petition to render the account, filed more than two years prior to the filing of the account and issuance of the notice, that act constituted an appearance in the proceedings on the allowance of the account. There is nothing in this. The proceeding on the petition to render terminated on the filing of the account. Indeed, there is no requirement in our statutes or practice which requires an accountant to present an account for allowance. See G.L. c. 205, § 1; c. 206, §§ 1, 23A; Uniform Probate Practice XVI C.; Massachusetts Probate Manual, supra at 4-5. The proceeding for the allowance of the account, although under the same docket number as is the custom in the Probate Court, was a new proceeding requiring a new appearance pursuant to rule 72(b)(1)(A). Surely, the appearance in the petition-to-render case cannot be regarded as an appearance in an action for the allowance of an account yet to be filed. Contrast Dolan v. Roy, 286 Mass. 519, 190 N.E. 717 (1934) (After an account had been filed, but before the citation, an attorney entered an appearance for an interested person. Later the attorney wrote to the court asking that the account be marked for hearing and requesting notice of the hearing date. The account was allowed without notice to the attorney or the interested person.). The Morins' second contention is easily answered. For the reasons already stated, their attorney's appearance in the petition-to-render proceeding cannot be taken as a request "in writing for notice of proceedings on accounts" within the meaning of G.L. c. 206, § 24(5). Moreover, the attorney was not a "person interested" as that term is...