Harvey v. Waitt

• Decision Date: 29 October 1942
• Citation: 312 Mass. 333,44 N.E.2d 629
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: GEORGE STANLEY HARVEY & another, guardians, v. HENRY F. WAITT.

312 Mass. 333

44 N.E.2d 629

GEORGE STANLEY HARVEY & another, guardians, v. HENRY F. WAITT.

Supreme Judicial Court of Massachusetts, Plymouth.

October 29, 1942

May 11, 18, 1942.

Present: FIELD, C.

J., DONAHUE, QUA DOLAN, & RONAN, JJ.

Probate Court Parties, Appeal, Guardianship, Conduct of hearing. Spendthrift. Guardian, Of spendthrift. A judge of a Probate Court had no authority under G. L. (Ter. Ed.) c. 215,

Section 29, or otherwise to dismiss an appeal which was being seasonably perfected as required by c. 231, Sections 135, 144, on the ground that the appellant was not a party aggrieved by the decree appealed from; the determination of that question was for this court. A spendthrift under guardianship was, within G. L. (Ter. Ed.) c. 215,

Section 9, a party aggrieved by a decree of a Probate Court allowing a petition by his guardian for leave to compromise a claim against him and he had a right of appeal therefrom, and that appeal might properly be taken in his name by his next friend.

Section 37 of G. L (Ter. Ed.) c. 201 does not confer upon a guardian of a spendthrift the exclusive right to represent him upon the guardian's petition for leave to compromise a claim against him; the Probate

Court has power to appoint some other person to represent his interest in the matter.

Permitting counsel to represent a ward under guardianship as a spendthrift at a hearing of a petition by the guardian for leave to compromise a claim, to which petition counsel had filed an answer for the ward "by his next friend, his wife," was tantamount to an authorization of such representation by the next friend, and was proper.

It was error to allow a petition by a guardian of a spendthrift for leave to compromise a judgment against him upon a hearing in a Probate Court where determinative averments of the parties were contradicted, where the only agreed or undisputed facts were the existence of the judgment and of the offer of compromise, and where the respondent was not afforded an opportunity to introduce evidence in any formal way.

PETITION, filed in the Probate Court for the county of Plymouth on September 22, 1941.

An answer to the petition for leave to compromise was entitled "Answer of the ward, Henry F. Waitt, by his next friend Viola M. Waitt"; stated that in filing it he was "acting by his next friend, his wife, Viola M. Waitt," and was signed "by her attorneys, George W. Abele, S. R. Wrightington." The appeal from the decree upon that petition was by "Henry F. Waitt, by his next friend, Viola M. Waitt," and was signed "Henry F. Waitt, Viola M. Waitt, next friend, by George W. Abele, S. R. Wrightington, attorneys." The answer to the petition to dismiss the appeal and the appeal from the decree allowing that petition were stated to be, respectively, of "Henry F. Waitt by his wife and next friend," and of "Henry F. Waitt, by his next friend, Viola M. Waitt."

The case was heard by Stone, J.

S. R. Wrightington, (G.

W. Abele with him,) for the respondent.

G. Newhall, for the petitioners.

DOLAN, J. This is a petition, filed in the Probate Court by the guardians of the respondent as a spendthrift, for leave to compromise a demand represented by a judgment obtained against him in the Superior Court upon which execution issued July 7, 1930, in the sum of $16,637.39. Interest from that date to the filing of the petition amounted to $11,147.05, making the total amount then claimed to be due $27,784.44. The judgment was obtained in an action against him by his father, who died in 1940. The present petition was filed September 22, 1941. The petitioners sought authority to compromise the demand for $27,500. The respondent appeared to object by his wife and next friend and counsel. The petition came on for hearing, and on February 10, 1942, the judge entered a decree authorizing the petitioners to compromise the demand in their discretion by the payment of not more than $26,000, or to submit the same to arbitration. The respondent appealed seasonably.

On March 16, 1942, the petitioners filed a petition that the respondent's appeal be dismissed on the ground that the respondent, "being under guardianship as a spendthrift at the time of the filing . . . [of the petition for leave to compromise] and its allowance by the . . . Court, is not a party aggrieved by said decree within the meaning of the law." At the hearing of that petition counsel for the respondent moved that the respondent's wife be appointed as next friend to represent him. This motion, as well as one of the respondent for the appointment of a stenographer in accordance with the provisions of G. L. (Ter. Ed.) c. 215, Sections 12, 18, was denied by the judge, but he permitted the respondent's counsel to be heard in argument. At the conclusion of brief arguments by counsel for the parties the judge allowed the petition to dismiss the appeal, and the respondent appealed.

The docket entries, which are before us, disclose that the respondent's appeal from the decree authorizing the compromise was being seasonably perfected as required by G. L. (Ter. Ed.) c. 231, Section 135 (see also Section 144) when the decree dismissing it was entered. The petitioners do not contend otherwise but rely solely on the ground set forth in their petition to dismiss the appeal. The only authority conferred upon the judge to dismiss the appeal is contained in G. L. (Ter. Ed.) c. 215, Section 29, which provides, so far as here material, that if "the appellant waives his appeal in writing before the copies have been transmitted to the supreme judicial court, the probate court may proceed as if no appeal had been taken; or if he fails to cause the necessary copies to be prepared or otherwise fails to perfect his appeal, the probate court from which the appeal was taken may, upon petition of any person interested, and upon such notice to the appellant as the probate court shall order, dismiss the appeal and affirm the decree or order appealed from, and further proceed as if no appeal had been taken." Since the respondent had not failed to perfect his appeal as required by the governing statutes, the judge was without authority to enter the decree dismissing it. The question whether the respondent was a party aggrieved by the decree entered authorizing the compromise was not one for the trial judge, but was one for this court to determine. See Monroe v. Cooper, 235 Mass. 33, 34, and cases cited; Madden v. Madden, 279 Mass. 417 , 421, 422. It follows that the decree entered by the judge dismissing the appeal must be reversed.

We proceed to the consideration of the respondent's appeal from the decree authorizing the compromise of the demand in question. We have already described its character.

In accordance with the request of the respondent, a stenographer was appointed to report the evidence and was duly sworn. No formal evidence was presented to the judge and the hearing consisted of extended colloquies between counsel for the parties and the judge. An attorney for the present holder of the judgment in question also spoke at some length. At the beginning of the hearing counsel for the respondent presented a motion by the wife of the respondent that she be appointed guardian ad litem to represent him in the proceedings. The judge stated that he would "hear any party on that motion." Counsel for the petitioners objected to the allowance of the motion, stating that he saw no reason why the guardians of the respondent (who were the petitioners) should not represent him. He insisted that "these parties" (the respondent and his next friend) have no standing whatsoever upon a petition to compromise, that it was too late, and that under G. L. (Ter. Ed.) c. 201, Section 37, the respondent was properly represented by the petitioning guardians. Counsel for the respondent asserted the right of the respondent to be represented by someone other than his guardians in the proceeding. In reply counsel for the petitioners reiterated that the respondent had no legal standing "in the case of compromise of an execution." While the judge took no action on the motion that the respondent's wife be appointed guardian ad litem to represent his interests in the matter, he allowed counsel in behalf of the respondent to participate throughout the proceedings before him. The discussion ran on, revolving around the question of the right of the respondent to be heard and the question whether evidence of certain alleged facts concerning the circumstances under which the judgment in question was obtained, offered by the respondent, could be admitted and considered. The respondent, in substance, offered to prove that when the judgment was obtained he was under the guardianship of the petitioners, as now; that the petitioner Mr. Harvey was the general counsel for the respondent's father, the plaintiff in the action; that another lawyer prepared the writ; that Mr. Harvey appeared for the respondent and suffered judgment to go against him by default; that the purpose of the action was to secure a judgment against him, which could be satisfied upon the death of the respondent's father, when the respondent would come into a large inheritance under his grandmother's will, and which would enure to the benefit of his stepmother, whose attorney represented her in the present case. It was the contention of the respondent that he had equitable defences to any action on the judgment to which he should be given an opportunity to respond rather than that the demand be compromised as sought by the petitioners for a sum slightly less than the face of the judgment with interest. Counsel for the petitioners controverted these alleged facts. The judge stated his recollection of certain testimony given by the respondent in a prior...