In re Davis
| Decision Date | 07 January 1921 |
| Citation | 129 N.E. 366,237 Mass. 47 |
| Parties | Petition of DAVIS. Petition of CLAPP. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
OPINION TEXT STARTS HERE
Report from Probate Court, Middlesex County; John C. Leggat, Judge.
Petitions by Arthur S. Davis and by Gustavus Clapp for appointment as administrator with the will annexed of the estate not already administered of John L. Wilson, resulting in decrees for Davis and against Clapp. On report from the judge of probate to the Supreme Judicial Court. Decrees of the probate court affirmed.
William M. Noble, of Boston, for Davis.
Edmund A. Whitman and Curtis H. Waterman, both of Boston, for Clapp.
This matter comes before us by report of a judge of probate. Each of the petitioners seeks on his own petition appointment as administrator with the will annexed of the estate not already administered of John L. Wilson. The will of John L. Wilson has been allowed and his widow was appointed and qualified as executrix. She filed an inventory disclosing a considerable estate, but never rendered an account and has died without having fully administered the estate. No question is made as to the necessity of the appointment of some one as administrator. No objection was made to the personal qualifications of the petitioner Davis; and the judge, having found him to be a suitable person, appointed him. The assent of a number of persons asserting themselves to be interested in the estate is appended to his petition. The petitioner Clapp, having been appointed and qualified as executor of the will of the deceased widow of the testator, contends that he is entitled to be appointed administrator of the estate of the testator on the ground that that estate vested absolutely in his widow.
It is assumed without deciding that the case is properly before us under St. 1919, c. 274. See Hayden v. Keown, 232 Mass. 259, 122 N. E. 264.
Under the practice obtaining in the province of Massachusetts Bay, the executor of a deceased executor was by law executor of the first testator. That was changed soon after the Revolution and a different provision established. Waters v. Stickney, 12 Allen, 1, 9, 90 Am. Dec. 122;Foster v. Bailey, 157 Mass. 160, 162, 31 N. E. 771. The present statute is G. L. c. 192, § 8, to the effect that ‘the executor of the will of an executor shall not, as such, administer on the estate of the first testator.’ It is provided by G. L. c. 193, § 9, that under circumstances like those here disclosed the probate court shall grant letters of administration with will annexed to administer the remaining estate ‘to one or more suitable persons.’ The words ‘suitable person’ have no statutory or other fixed and inflexible meaning in this connection. Their context in connection with the history of the statute shows that they were intended to confer a wide discretion upon the probate court. They authorize the appointment of the person or persons who appear in the exercise of sound and discerning...
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In Re Watkins' Estate.
...the light of the facts and circumstances bearing upon his suitableness for appointment in respect to that particular estate. In re Davis, 237 Mass. 47, 129 N.E. 366; Emsley v. Young, 19 R.I. 65, 31 A. 692. The Bank lays much stress upon one statement in the ultimate finding No. 25, ‘that in......
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...common law practice of making the executor of a deceased executor the executor of the first testator was early changed. Davis, Petitioner, 237 Mass. 47, 49, 129 N. E. 366. The only ground on which the petition in each of these cases can seek proof of the will and appointment as executor is ......
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