Grossman v. Grossman

• Citation: 179 N.E.2d 900,343 Mass. 565
• Parties: Abraham D. GROSSMAN et al. v. Bessie GROSSMAN.
• Decision Date: 08 February 1962
• Court: United States State Supreme Judicial Court of Massachusetts

Page 900

179 N.E.2d 900

343 Mass. 565

Abraham D. GROSSMAN et al. v. Bessie GROSSMAN.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Jan. 3, 1962.

Decided Feb. 8, 1962.

Joseph J. Hurley, Boston, for Bessie Grossman.

Joseph B. Abrams, Boston (Robert T. Abrams, Boston, with him), for Abraham D. Grossman and another.

Before WILKINS, C. J., and SPALDING, WILLIAMS, CUTTER and KIRK, JJ.

KIRK, Justice.

Bessie Grossman, the widow of Benjamin Grossman, who died November 27, 1959, appeals from a decree of the Probate Court appointing Abraham D. Grossman and Sonya S. Shuman, both children of Benjamin by a former marriage, as executors of his will executed on May 27, 1952. Abraham and Sonya were named as executors in the will which was allowed without objection by the judge on February 16, 1960. Upon objection by Bessie to their appointment, a hearing was had, and the judge made a report of material facts under G.L. c. 215, § 11. The evidence is reported. In these circumstances, 'it is our duty to examine * * * [the evidence] and decide the case according to our own judgment, but the discretion of the judge who heard the evidence and saw the witnesses is entitled to great weight, and his decision will not be disturbed unless we are satisfied that it was clearly erroneous and not supported by the evidence.' Osborne v. Craig, 251 Mass. 169, 172, 146 N.E. 263, 264, and cases cited. See Foley v. Coan, 272 Mass. 207, 209, 172 N.E. 74. We have applied this principle of judicial review to the case and find no reason to disturb the decision of the judge.

The report of material facts, the will, and the evidence disclose the following. For more than twenty years prior to Benjamin's death, he and Abraham had been engaged in the purchase and management of apartment houses. Even before that time and prior to her own marriage, Sonya, who is two years older than Abraham, had helped her father in the conduct of his business. The father was never able to read or write English. After his marriage to Bessie in 1944, two real estate trusts were organized at different times, each issuing one hundred shares. At the time of Benjamin's death, Benjamin and Abraham each controlled fifty shares in one of these trusts. In the other trust, Benjamin, Abraham, Sonya, and Abraham's wife controlled twenty-five shares each. During each of the ten to twelve years before his death, Benjamin and his wife spent five months in Florida and three months on Cape Cod. Over these years Abraham was entrusted with the care and management of the real estate consisting of 111 apartments. Abraham managed the property frugally and efficiently, personally collecting rents, paying bills, keeping accounts and doing most of the repair and maintenance work. His father had free access to the books and to the services of the accountant for the business.

As to the personal relations among the parties, the judge found that Abraham and Sonya are friendly toward each other despite a quarrel over a business matter in 1954; that Sonya is friendly toward Bessie; that while Abraham was never close to Bessie, his attitude toward her was always correct and respectful; and that Benjamin was never inclined to discuss with Bessie the details of business, finances or provisions of his will. It also is a fact that Bessie has four adult children by a former marriage, and that Sonya and her husband are now permanent residents of Florida.

Under the terms of Benjamin's will Bessie is to receive one third of his estate and Abraham and Sonya are to share equally in the remaining two thirds. Specifically referred to in the will as an asset of the estate is an apartment house located on Strathmore Road, Brighton. The will states that this property although standing in Bessie's name was bought entirely by Benjamin's funds with no intention to make a gift of it to Bessie. Not mentioned in the will is a parcel of property on Kilsyth Road, Brighton, which had been bought by Benjamin in Abraham's name. Upon Abraham's entering military service in 1943, he conveyed the Kilsyth Road property to his father who never recorded the deed. Bessie had it recorded when she found it among Benjamin's papers.

The judge concluded his report of material facts with the statement that Abraham and Sonya 'are not unsuitable to fairly and effectively perform their duties as executors of their father's estate.'

General Laws c. 192, § 4, provides: 'If a will has been duly proved and allowed, the probate court shall issue letters testamentary thereon to the executor named therein, if he is legally competent and a suitable person * * *.' The appellant does not contend that the executors are not legally competent. The only question is whether they are suitable persons. Basically the term 'suitable person' connotes a person who is considered to have the capacity and the will to discharge the duties in the particular case with fidelity and efficiency. See Davis, petitioner, 237 Mass. 47, 49-50, 129 N.E. 366.

Before considering the specific grounds of unsuitability which the appellant cite...