Dwyer v. Dwyer
| Decision Date | 04 June 1921 |
| Citation | 239 Mass. 188,131 N.E. 328 |
| Parties | DWYER v. DWYER et al. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Probate Court, Suffolk County; Robert Grant, Judge.
Proceeding by William J. Dwyer, executor, against John J. Dwyer and others for allowance of the executor's final account. From a decree amending the account and allowing it as amended, the executor appeals. Reversed.
The executor's motion to report the evidence was denied on the ground that no evidence was taken, and that the decision was based on the contentions of the parties as stated by their counsel.
Francis T. Leahy, of Boston, for appellant.
This is an appeal by William J. Dwyer from a decree of the probate court, allowing after amendment his first and final account as executor of the will of Bridget Dwyer. In the account he charged himself in schedule A with personal property at its inventory value and other items, including $5,500 received from the sale of real estate, a total of $6,959.75, and in schedule B asked to be allowed for sundry payments and charges amounting to $6,959.75. Objection being made by the parties in interest, the executor requested the appointment of a commissioner to take the evidence, and such an order was made. In the report of the judge it was found that on July 10, 1919, a decree was entered authorizing the sale of the real estate for the payment of debts and legacies, for the sum of $5,500, and that it was at the same time decreed that the executor be allowed ‘to purchase such real estate for himself at said sale.’ The judge further found that on July 10, 1919, the executor executed a deed of sale to himself and entered into possession of the property. No money was paid by the executor at this time and none was received by him and credited to the estate until November 5, when the deed was recorded, at which time he mortgaged the property for the sum of $3,000. The executor claimed that he was entitled to rents and profits from July 10, 1919, but the judge found that, having purchased the property in a fiduciary capacity, he was not entitled to occupy the premises without accounting for the rents and profits between the date when the title passed and the date when he actually paid or credited to the estate the purchase price.
A decree was entered charging the executor with $222 rents and profits from July 10, 1919, to November 5, 1919, making schedule C the balance in the hands of the executor, $222, and the account so amended was allowed. The executor's motion to report the evidence was denied on the ground that no evidence was taken at the trial, and in the report of the judge it is said that no testimony was offered by either party. ‘The appellant and the appellees were represented by counsel, who stated their contentions to the court.’
By St. 1919, c. 274, § 4 (see now G. L. c. 215, § 12), it is provided that on an appeal from the probate court, no oral evidence shall be exhibited to the full court, but the evidence and all questions relating thereto shall be subject to like provisions as are contained in R....
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