Everett Trust Co. v. Waltham Theatre Amusement Co.

• Decision Date: 01 June 1929
• Citation: 267 Mass. 350,166 N.E. 831
• Parties: EVERETT TRUST CO. v. WALTHAM THEATRE AMUSEMENT CO. et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

267 Mass. 350

166 N.E. 831

EVERETT TRUST CO.

v.WALTHAM THEATRE AMUSEMENT CO. et al.

Supreme Judicial Court of Massachusetts, Suffolk.

June 1, 1929.

Report from Superior Court, Suffolk County; Henry T. Lummus, Judge.

Suit by the Everett Trust Company against the Waltham Theatre Amusement Company and others, in which Alice Y. Downey, executrix under the will of Stanley W. C. Downey, was substituted as defendant in place of Stanley W. C. Downey, deceased. On report from the Associate Justice of the Superior Court ordering a decree dismissing the bill as against defendant Downey and his estate. Order for decree affirmed.

S. Markell, of Boston, for plaintiff.

A. F. Flint, of Boston, for defendants.

PLERCE, J.

This suit in equity is reported to this court under the provisions of G. L. c. 214, § 30. The bill of complaint was brought against the Waltham Theatre Amusement Company and Stanley W. C. Downey, as maker and indorser, respectively, of a certain promissory note, and the other defendants were joined under G. L. c. 214, § 3, cl. 8, to reach and apply in payment of said note shares of stock owned by Downey in cartain corporations organized under the law of this commonwealth. Service of the subpoena was made upon the defendant Downey on June 1, 1926, and he filed an answer by consent on August 30, 1926. It is admitted that Downey was a stockholder in several of the defendant companies at the time of the service of the order of notice upon him and upon them.

On January 18, 1927, while the bill was pending, before a hearing on the merits and before a final decree, Stanley W. C. Downey died. On January 28, 1927, his widow filed a petition in the probate court of Suffolk county, where the deceased resided, for her appointment as executrix under his will. The petition was allowed, and the will proved on February 17, 1927; on that date her bond as executrix without sureties, in the sum of $25,000, was filed, and approved by Clara L. Power, assistant register of said court. Notice of her appointment as executrix was duly published by her in the Boston Traveler on February 23, and on March 7, 1927, and an affidavit of such publications was duly filed by her in the probate court on March 21, 1927.

On April 8, 1927, the plaintiff filed, in the superior court, in the present case, a suggestion of the death of Stanley W. C. Downey; and on the same date filed a petition to join Alice Y. Downey, executrix under the will of said Stanley W. C. Downey, as defendant to appear and take upon herself the defence of this suit. No citation was taken out on the petition to join the said executrix as defendant within one year from the time she gave her bond as executrix and gave the notice required by law. G. L. c. 228, §§ 4, 5, 7, 12. On May 29 and June 26, 1928, the executrix filed a motion to dissolve the injunctions issued on April 20 and June 2, 1926. An appearance was entered for the executrix while the motion filed May 29, 1928, was pending and undisposed of. The substitute motion, filed June 26, 1928, was allowed on June 27, 1928. On this report no question arises with reference to the dissolution of these injunctions.

On July 20, 1928, the executrix filed a motion to dismiss the suit against Stanley W. C. Downey ‘so far as the said Downey and his estate are concerned, because said defendant died after the commencement of this suit and before the entry of a final decree therein, and the said executrix did not voluntarily appear herein nor was a citation issued within one year from the time when she gave bond as such executrix, she having given notice of her appointment as required by law.’ ‘At the hearing upon said so-called motion, it appeared that on the seventeenth day of February, 1927, the register of Probate Court and Court of Insolvency for the County of Suffolk was Arthur W. Sullivan, and on said date he was in attendance at his office at the Court House, Boston, and performing his duties. He was not absent from his office except during the usual noon hour when he went for his luncheon. He did not neglect his office or the duties thereof. He was not at any time removed as register of probate. He did not resign from said office as register of probate. He was available during the usual office hours on said seventeenth day of February, 1927, as duly published at his office in said Court House, and part of said seventeenth day of February, 1927, was in attendance in the court room with the Judge of Probate.’ The motion ‘treated as a plea’ was sustained by the trial judge and an order for a decree was entered dismissing the bill as against the defendant and his estate without costs.

The appearance of the executrix on June 11, 1928, while the motion to dissolve the injunction filed on May 29, 1928, was pending and undisposed of, was not a voluntary appearancein the action, within the meaning of G. L. c. 228, § 4, nor did it relieve the plaintiff from citing the executrix to appear and take upon herself the defence of the action. Garber v. Hirsh, 225 Mass. 422, 114 N. E. 670;Finance Corporation...