Katherine A. Gallagher, Administratrix, v. Louise C. Phinney

• Decision Date: 25 October 1933
• Citation: 284 Mass. 255
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: KATHERINE A. GALLAGHER, administratrix, v. LOUISE C. PHINNEY & another.

284 Mass. 255

KATHERINE A. GALLAGHER, administratrix, v. LOUISE C. PHINNEY & another.

Supreme Judicial Court of Massachusetts, Middlesex.

October 25, 1933

April 5, 1933.

Present: RUGG, C.

J., CROSBY, PIERCE FIELD, & DONAHUE, JJ.

Executor and Administrator, Account, Compensation. Probate Court, Appeal Auditor: report, findings; Costs; Findings by judge. Interest. Contract, Implied.

Where, upon an appeal from a decree of a probate court, entered after a hearing upon a contested account of an administrator, there was no report of evidence under G. L. (Ter. Ed.) c. 215 Section 12, and no report by the judge of material facts found by him, a report of an auditor, which was in evidence before the judge, was not properly a part of the record although it was printed with the other papers on appeal.

Where, upon such an appeal, it did not appear that the parties had agreed to submit the findings by the auditor as facts or as evidence, and the decree recited that the matter had "been referred to an auditor who has reported to the court, and a hearing had thereon," and ordered "that the account be allowed in accordance with the auditor's report except" for certain changes in specified items, it could not be said that the decree incorporated the report in the record either as findings of fact or as a report of evidence by the judge.

The only question open in this court upon the appeal above described was the power of the Probate Court to make the decree upon any evidence which might have been presented at the hearing on the account.

If a judge of probate finds, on evidence warranting his findings, that the personal representative of a decedent has failed to establish a right to compensation for services rendered to the decedent, the judge has power to disallow an item in an account of the personal representative charging the estate for such services.

It was stated that a judge of probate, hearing a contested account of the personal representative of a decedent, has the power in proper circumstances to refuse to allow the accountant any compensation for his services as personal representative, to charge him with interest on funds of the estate which he improperly has failed to distribute and to order him to pay costs and expenses to the attorney for the contestant.

It was stated that, assuming that the report of an auditor, to whom had been referred a contested account of the personal representative of a decedent, was the only evidence, except for the account, before the judge of probate at a hearing on the account, a finding by the auditor, based on all the evidence before him, that the accountant had not sustained the burden of establishing a charge to the estate for services rendered to the decedent, warranted action by the judge disallowing an item in the account for such services and was consistent with subsidiary findings by the auditor to the effect that the relation between the decedent and the accountant was "social" rather than "one of business."

PETITION, filed in Probate Court for the county of Middlesex on June 25, 1930, for the allowance of the first and final account of the petitioner as administratrix of the estate of Emily B. Bailey, late of Somerville.

The matter was referred to an auditor. A decree, entered by order of Leggat, J., is described in the opinion. The petitioner appealed.

E. J. Flynn, A.

L. Baker, & C.

S. Donovan, for the administratrix, submitted a brief.

C. C. Steadman, for the respondents.

FIELD, J. This is an appeal by the administratrix of the estate of Emily B Bailey, late of Somerville, from a decree of the Probate Court upon her account as such administratrix for the period beginning March 7, 1927, and ending June 24, 1930. The account filed by her purported to be a first and final account and showed nothing remaining in her hands to be accounted for. Upon objection by the next of kin of the intestate to the allowance of the account the matter was referred to an auditor who made a report. Thereafter a decree was entered allowing the account as a first account, changed in many particulars from the account as presented so that it showed a balance in the hands of the administratrix of $12,809.21. In reaching this result an item of $8,000 charged as of December, 1927, against the estate for services of the accountant rendered prior to the death of the intestate was disallowed and no allowance of compensation for her services as administratrix was made. The decree also ordered payment by the accountant to the next of kin of the intestate of interest in the sum of $3,549.03, and payment to their attorney of the sum of $2,500 as costs and expenses. The accountant appealed.

The accountant contends that the decree was wrong in disallowing the $8,000 item for services of the accountant prior to the death of the intestate, in allowing no compensation for her services as administratrix, in ordering payment of interest, and in allowing costs and expenses. Except as to the resulting balance in her hands the accountant makes no objection to the other modifications of the account.

No error in the decree is disclosed. The evidence taken in the Probate Court is not reported (see G. L. [Ter. Ed.] c. 215, Section 12) and no report of material facts found by the judge was made by him either voluntarily (see Mulloney v. Barnes, 266 Mass. 50, 51), or at the request of a party as provided in G. L. (Ter. Ed.) c. 215, Section 11. The auditor's report -- which is printed with the appeal papers -- is not a part of the record. The matter of the allowance of the account was within the jurisdiction of the Probate Court sitting in probate. Buttrick v. Snow, 277 Mass. 401 , 404. Procedure on appeal in such cases resembles procedure in equity (G. L. [Ter. Ed.] c. 215, Section 9), but an auditor's report on such an account is not like a master's report in equity. See Hodge v. Mackintosh, 248 Mass. 181 , 188. It is by express statutory provision prima facie evidence upon the matters included in the reference (G. L. [Ter. Ed.] c. 221, Section 57), and stands like an auditor's report at common law. Compare Collins v....