Hilton v. Hopkins

• Citation: 175 N.E. 162,275 Mass. 59
• Parties: HILTON, Public Adm'r, v. HOPKINS.
• Decision Date: 03 March 1931
• Court: United States State Supreme Judicial Court of Massachusetts

275 Mass. 59

175 N.E. 162

HILTON, Public Adm'r,

v.HOPKINS.

Supreme Judicial Court of Massachusetts, Middlesex.

March 3, 1931.

Appeal and Report from Probate Court, Middlesex County; Charles N. Harris, Judge.

Petitions by Frederick H. Hilton, Public Administrator, for revocation of a decree of the probate court appointing Rosalba Hopkins administratrix of the estate of Mary Bahan, deceased, and for the removal of Rosalba Hopkins as administratrix. The petitions were dismissed, and the administrator appeals, and case was reported.

Modified and affirmed.

W. E. Bennett, of Boston, for plaintiff.

F. L. Simpson, of Boston, for defendant.

WAIT, J.

This case is before us upon appeals by a public administator from decrees dismissing petitions for revocation of a decree appointing Rosalba Hopkins administratrix of the estate of Mary Bahan, and for the removal of Rosalba Hopkins as administratrix. From the evidence taken by the stenographer at the hearings and the report of the judge the following facts appear: Mary Bahan, who for many years had resided in Framingham in the county of Middlesex, died there May 17, 1928. On June 28, 1928, Hilton, a public administrator pursuant to G. L. c. 194, § 4, petitioned for appointment as administrator of her estate, alleging that Mary Bahan had died intestate leaving property in Middlesex county to be administered and that there was no known husband or heir living in the commonwealth. The petition was granted on July 20, 1928. Hilton took out letters and proceeded with the administration; but on November 2, 1928, Rosalba Hopkins filed a petition alleging the death of Mary Bahan ‘also called Mary Behan’ leaving no husband, and as her only heirs at law and next of kin six named persons residents of the Irish Free State, two nephews and four nieces, who requested her to act, and praying that ‘she, or some other suitable person, be appointed administratrix.’ This petition, under the caption ‘The undersigned, being all the persons interested residing in the Commonwealth who are of full age and legal capacity, hereby assent to the foregoing petition,’ bore the names of the six persons alleged to be heirs ‘By Chester J. O'Brien, Their attorney in fact.’ The Attorney General appeared to object for the treasurer of the commonwealth. Hilton also entered an appearance. Interrogatories were filed to five of the six alleged to be heirs and answers thereto were filed. Investigation was made by the Attorney General and by counsel for Hilton. When the petition came up for hearing, the Attorney General and Hilton filed written statements that they did not care to be heard and withdrew their opposition; but they did not withdraw their appearances. Thereupon Rosalba Hopkins was appointed by decree dated March 6, 1929. This decree recited that the petition had been considered, ‘it appearing that all the next of kin of said deceased reside without the Commonwealth and have assented thereto * * * a hearing had thereon and objections subsequently being withdrawn and it further appearing that the petitioner is a competent and suitable person.’ No general citation was issued on the petition. The issue tried at the hearing was whether or not those representing themselves to be heirs at law were in fact such heirs. No evidence to show that they were not was produced in court. No appeal was taken. On March 14, 1929, Hilton surrendered his letter of appointment. His account was allowed April 15, 1929, and he turned over the assets of the estate to Rosalba Hopkins as administratrix.

On June 3, 1929, Hilton, as public administrator, filed a petition to revoke the decree of March 6, 1929, alleging that the persons claiming to be nephews and nieces of Mary Bahan were not related to her in any way. On October 17, 1929, he filed a petition for the removal of Rosalba Hopkins as administratrix, which alleged that the persons claiming to be heirs at law of Mary Bahan were not related to her in any way and that the administratrix was unsuitable. Depositions were taken and filed in court. The petitions were heard together on May 22, 1930. Both petitions were dismissed on June 12, 1930. From the evidence the judge was satisfied that the claimants were not heirs at law of Mary Bahan, but he could not find that there was fraud in the procurement of signatures to the power of attorney by virtue of which claim was made, nor any fraud in the claims made. All parties may have acted in good faith. He dismissed the petition for revocation as matter of law in reliance upon ‘Renwick v. Macomber [233 Mass. 530, 124 N. E. 670] and other cases dealing with revocation of decrees.’ He wrote to counsel that he found as a fact that the claimants were not heirs at law of Mary Bahan, but dismissed the petition as matter of law ‘as it appeared that upon the petition for appointment of the administratrix the Attorney General or public administrator could or should have presented the same evidence that they presented to me under date of May 22, 1930.’

Nothing is reported to show that the administratrix is not a capable and suitable person to discharge her trust. We find no error in the dismissal of the petition for her removal.

The decision with regard to the petition for revocation is put upon the ground that it was required as matter of law in the circumstances. The appellant contends that in the circumstances, on the contrary, the court was without jurisdiction to make the appointment. This contention is not sound. The jurisdiction of the probate court of the county rests primarily upon the fact that the decedent was resident within the county leaving property requiring to be administered within the county. G. L. c. 190, § 3. There is no dispute that one Mary Bahan had lived in the county...