Harris v. Starkey

• Decision Date: 21 June 1900
• Parties: HARRIS v. STARKEY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

176 Mass. 445

57 N.E. 698

HARRIS v. STARKEY.

Supreme Judicial Court of Massachusetts, Hampden.

June 21, 1900

COUNSEL

John L. Rice, for appellant.

F. E Carpenter, for appellee.

OPINION

MORTON J.

The appellant was one of the heirs at law of Daniel P. Kingsley who died testate, and as such was entitled to one-eleventh part of the rest and residue of his estate. Through ignorance and mistake an the part of the executor and the judge of the probate court, she was not named in the decree of distribution as one of the persons amongst whom the rest and residue was to be divided. She herself had no notice or knowledge of the probate of the will of said Kingsley, nor of the application for an order of distribution nor of the proceedings thereon, nor of the payments made by the executor under the decree of distribution, nor of the account rendered by him of such payments and its allowance till long after all these things had been done. This is a petition by her that the order of distribution be modified so that the executor shall be directed to distribute the funds to her and the others named in the order,--one-eleventh to each. The petition was dismissed in the probate court. An appeal was taken by her, and the case comes before us on a report from the single justice who heard the case, and who directed the decree of distribution to be so modified that payment should be made to the appellant and the others named in the decree in equal shares, of one-eleventh each. But in the decree which he ordered to be entered he directed that the decree should not require the executor to take further action, nor impose upon him any liability, but should take effect only to correct the errors of the former decree, and establish the right of the petitioner to a distributive share as against the other distributees to whom payments had been made, and to give to her and to the executor such rights as against such other distributees as might arise from the correction of these errors. It is manifest that the petitioner will be without a remedy unless she can maintain this petition. She cannot attack the former decree collaterally, and, from the nature of the proceedings, it will be conclusive and binding upon her so long as it stands unrevoked and unmodified, even though she may have had no actual notice of the proceedings. The executor is protected from liability by it, and by the return and allowance, after due notice, of his account containing the payments made by him pursuant to the decree. And the only way in which the appellant can procure a revision or modification of it is by proceedings instituted in the probate court for that purpose. Loring v. Steineman, 1 Metc. 204; Pierce v. Prescott, 128 Mass. 140; McKim v. Doane, 137 Mass. 195; Shores v. Hooper, 153 Mass. 228, 232, 26 N.E. 846, 11 L. R. A. 308; Bonnemort v. Gill, 167 Mass. 338, 45 N.E. 768. It is too well settled to require...