Gallagher v. Phinney

• Decision Date: 25 October 1933
• Citation: 284 Mass. 255,187 N.E. 612
• Parties: GALLAGHER v. PHINNEY et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

284 Mass. 255

187 N.E. 612

GALLAGHER

v.PHINNEY et al.

Supreme Judicial Court of Massachusetts, Middlesex.

Oct. 25, 1933.

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

Katherine A. Gallagher, as administratrix of the estate of Emily B. Bailey, filed her first and final account, and, from a decree modifying such account and charging her with $12,809.21 and interest and costs, she appeals, opposed by Louise C. Phinney and others.

Affirmed.Edward J. Flynn, Augustus L. Baker, and Chas. S. Donovan, all of Boston, for appellant.

C. C. Steadman, of Boston, for respondents.

FIELD, Justice.

This is an appeal by the administratrix of the estate of Emily B. Bailey, late of Somerville, from a decree of the probate court upon her account as such administratrix for the period beginning March 7, 1927, and ending June 24, 1930. The account filed by her purported to be a first and final account and showed nothing remaining in her hands to be accounted for. Upon objection by the next of kin of the intestate to the allowance of the account the matter was referred to an auditor who made a report. Thereafter a decree was entered allowing the account as a first account, changed in many particulars from the account as presented so that it showed a balance in the hands of the administratrix of $12,809.21. In reaching this result an item of $8,000 charged as of December, 1927, against the estate for services of the accountant rendered prior to the death of the intestate was disallowed and no allowance of compensation for her services as administratrix was made. The decree also ordered payment by the accountant to the next of kin of the intestate of interest in the sum of $3,549.03, and payment to their attorney of the sum of $2,500 as costs and expenses. The accountant appealed.

The accountant contends that the decree was wrong in disallowing the $8,000 item for services of the accountant prior to the death of the intestate, in allowing no compensation for her services as administratrix, in ordering payment of interest, and in allowing costs and expenses. Except as to the resulting balance in her hands the accountant makes no objection to the other modifications of the account.

No error in the decree is disclosed.

The evidence taken in the probate court is not reported (see G. L. [Ter. Ed.] c. 215, § 12), and no report of material facts found by the judge was made by him either voluntarily (see Mulloney v. Barnes, 266 Mass. 50, 51, 164 N. E. 917), or at the request of a party as provided in G. L. (Ter. Ed.) c. 215, § 11. The auditor's report-which is printed with the appeal papers-is not a part of the record. The matter of the allowance of the account was within the jurisdiction of the probate court sitting in probate. Buttrick v. Snow. 277 Mass. 401, 404, 178 N. E. 620. Procedure on appeal in such cases resembles procedure in equity (G. L. [Ter. Ed.] c. 215, § 9), but an auditor's report on such an account is not like a master's report in equity. See Hodge v. Mackintosh, 248 Mass. 181, 188, 143 N. E. 43. It is by express statutory provision prima facie evidence upon the matters included in the reference (G. L. [Ter. Ed.] c. 221, § 57), and stands like an auditor's report at common law. Compare Collins v. Poole, 190 Mass. 599, 77 N. E. 484. Such an auditor's report is not a part of the record on appeal unless made so in some proper manner. Davis v. Gay, 141 Mass. 531, 534, 6 N. E. 549. See, also, McMillan v. City of Gloucester, 244 Mass. 150, 151, 138 N. E. 718. The parties here did not agree that the findings of the auditor should be submitted to the court either as facts or as evidence. Nor did the decree make the auditor's report a part of the record. It recited that the matter had ‘been referred to an auditor who has reported to the Court, and a hearing had thereon,’ ordered ‘that the account be allowed in accordance with the auditor's report except Item 20 in Schedule B of said report [compensation of the administratrix in the amount of $1,200], which is disallowed in the sum of $1,200, and that the items as set forth in Schedules A and B of said account be disallowed and allowed in the sums as set forth in the Schedules A, B and C hereto annexed,’ and set out in full the account as changed and allowed. This language is not to be interpreted as incorporating the auditor's report in the record as either findings of facts or a report of evidence by the judge. Moreover, even if the decree is treated as incorporating the auditor's report in the record as a report of evidence, it does not show that the auditor's report was the only evidence before the court. Being prima facie evidence it could have been supplemented, controlled or rebutted by other evidence. Lovell v. Commonwealth Thread Co., Inc., 280 Mass. 243, 245-247, 182 N. E. 364.

In this state of the record the only question open on appeal is the power of the probate court to make the decree upon any evidence which might have been presented at the hearing on the account. Goss v. Donnell, 263 Mass. 521, 523, 161 N. E. 896. But nothing in the decree was beyond the power of the court upon evidence which might have been presented at the hearing. The burden of establishing the correctness of the account rested on the accountant. Wood v. Farwell,...