King v. Grace

• Decision Date: 05 February 1936
• Citation: 293 Mass. 244,200 N.E. 346
• Parties: KING v. GRACE et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

293 Mass. 244

200 N.E. 346

KING

v.GRACE et al.

Supreme Judicial Court of Massachusetts, Hampden.

Feb. 5, 1936.

Petition by Raymond T. King, as administrator de bonis non with the will annexed of the estate of Jane F. King, late of Springfiled, for the allowance of an account of petitioner as administrator, contested by Gertrude O. Grace and another. From a decree allowing the account, respondents appeal.

Reversed and rendered.Appeal from Probate Court, Hampden County; Denison, Judge.

T. H. Bresnahan and J. Goldberg, both of Boston, for appellants.

E. H. Lyman, Jr., of Springfield, for appellee.

RUGG, Chief Justice.

This is an appeal from a decree allowing the first account of Raymond T. King, administrator with the will annexed of the estate not already administered of the late Jane F. King. The evidence is reported in full. The trial judge, in response to request by the two contesting legatees, made a finding of material facts. The main controversy between the parties relates to the charge of the accountant for his services.

Before the hearing began the contestants filed a motion requesting that some judge other than the judge of probate for Hampden County hear the case, because they believed that they could not get a fair and impartial trial before him on two grounds: (1) Because he ‘is alleged to have said’ to a named attorney representing the attorney for the contestants that the latter would be wasting his time and adding to the expenses of the estate by contesting the account, and (2) because the accountant had made a statement that the judge had told him that his charges were fair and reasonable. Three persons signed an affidavit to the effect that they had heard the accountant make the statement attributed to him. No affidavit was offered concerning the other ground, but the named attorney was called as a witness by the attorney for the contestants, the latter stating that he desired to examine him as to what he had told others concerning a colloquy between the judge and the attorney for the accountant. When called as a witness, he testified that he participated in such a colloquy but declined to tell what was said unless ordered by the court, because he felt that it was of a confidential nature and should not be disclosed. He was not ordered to testify as to what was said. Manifestly the witness was not hostile to the contestants because he had represented their attorney on the occasion in question. No affidavit was presented touching what was thus said, althoughapparently two persons who had been told by the witness were in the court room, one being the attorney conducting the hearing for the contestants. No offer of proof was made as to the testimony expected from the witness. Therefore the exception to the refusal of the judge to order the question answered cannot be considered, because it does not appear that the contestants were harmed by the refusal. Cook v. Enterprise Transportation Co., 197 Mass. 7, 10, 83 N.E. 325;Reilly v. Selectmen of Blackstone, 266 Mass. 503, 510, 165 N.E. 660. The first ground set forth in the motion, therefore, was wholly unsupported by affidavit or otherwise. During the trial the accountant testified that he never made the statement attributed to him in the motion, and that the judge had not said to him his charges were reasonable. The affidavit as to this ground was based upon hearsay, touching the untruth of which there was categorical testimony. There was, therefore, no proof of this ground. Doubtless the judge could hear the motion on testimony given by witnesses, or on affidavits, or on both. Universal Adjustment Corporation v. Midland Bank, Ltd., of London, 281 Mass. 303, 307, 184 N.E. 152, 87 A.L.R. 1407.

The fundamental law of the Commonwealth is that ‘It is the right of every citizen to be tried by judges as free, impartial and independent as the lot of humanity will admit.’ Article 29 of the Declaration of Rights of the Constitution. That declaration is essential to the end that ‘Every subject of the commonwealth ought to find a certain remedy, by having recourse to the laws, for all injuries or wrongs which he may receive in his person, property, or character. He ought to obtain right and justice freely, and without being obliged to purchase it; completely, and without any denial; promptly, and without delay; conformably to the laws.’ Article 11 of the Declaration of Rights. These constitutional guarantees have been rigidly enforced. Williams v. Robinson, 6 Cush. 333;Hall v. Thayer, 105 Mass. 219, 7 Am.Rep. 513;Crocker v. Justices of the Superior Court, 208 Mass. 162, 178 179,94 N.E. 369,21 Ann.Cas. 1061;Harrington v. Boston Elevated R. Co., 229 Mass. 421, 432, 433, 118 N.E. 880, 2 A.L.R. 1057;Preston v. Peck, 271 Mass. 159, 171 N.E. 54;Thomajanian v. Odabshian, 272 Mass. 19, 23, 172 N.E. 232;Ott v. Board of Registration in Medicine, 276 Mass. 566, 574, 575, 177 N.E. 542. The words in these decisions declaring the essentials of judicial conduct need not be repeated. The administration of justice by the courts ought not only to be, but it ought to appear to be, impartial and efficient. The principles of natural justice as well as the mandates of the Constitution establish a strict and lofty standard.

There is, in our opinion, nothing in this record to support the contention that the trial judge was not impartial and free from bias in the consideration of this case. It has been held that even an earlier expression of opinion as to a matter to be decided does not disqualify a judge or indicate want of competency to hear fairly and decide impartially all issues. Dittemore v. Dickey, 249 Mass. 95, 100, 144 N.E. 57;Preston v. Peck, 279 Mass. 16, 19, 180 N.E. 671; Charles County v. Wilmer, 131 Md. 175, 180, 181, 101 A. 686;Craven v. United States (C.C.A.) 22 F.(2d) 605, 607. The conduct of the trial did not reveal prejudice on the part of the judge. Some unseemly remarks did not exceed the limits held free from reversible error in Harrington v. Boston Elevated R. Co., 229 Mass. 421, 432, 433, 118 N.E. 880, 2 A.L.R. 1057. The fact that the judge went forward with the hearing in the circumstances disclosed was a most unequivocal assertion that on his conscience there was no disqualification.

The provisions of our own Constitution already quoted are at least as rigorous in exacting high standards of judicial propriety as are those of the Fourteenth Amendment to the Constitution of the United States. The provisions of that amendment, that no State shall deprive any person of his property without due process of law, or deny to any person the equal protection of the laws, govern the actions of courts. Mooney v. Holohan, 294 U.S. 103, 55 S.C.t. 340, 79 L.Ed. 791, 98 A.L.R. 406. In our opinion the present record fails to show any infringement of this mandate.

Jane F. King, the testatrix, died in April, 1929. She left a will wherein John J. Murray, then an attorney of excellent reputation, was nominated as executor. He was appointed to that trust in May, 1929, and gave a bond without sureties in the sum of $75,000. The estate was belivedto be substantial. No inventory was filed until May, 1930. The residue of the estate was to be divided among three relatives of the testatrix. The residuary legatees, not having received any money from the estate, went to the accountant in May, 1930, for the purpose of having him look after their interests. This appears to have been his first connection with the estate.

The accountant had then been a member of the bar about ten years. The work which he did in connection with the estate of the testatrix was described chiefly by himself. His testimony in that respect was not contradicted in any material particulars. It has not been assailed as to its general veracity by the contestants. It was apparently believed by the trial judge, as disclosed by his findings of material facts. Our examination of it convinces us of its credibility. The testimony of the accountant, therefore, ought to be and is accepted as true in its main features. Since this case comes before us on appeal with full report of the evidence, according to equity practice it is the duty of this court in these circumstances it is the duty of this court dence and, giving due weight to the finding of the trial judge and not reversing it when made on conflicting testimony, unless plainly wrong, to decide the case upon our own judgment. Lindsey v. Bird, 193 Mass. 200, 79 N.E. 263;Rubenstein v. Lottow, 220 Mass. 156, 165, 166, 107 N.E. 718;Martell v. Dorey, 235 Mass. 35, 40, 126 N.E. 354;Tuells v. Flint, 283 Mass. 106, 108, 109, 186 N.E. 222;Bowles v. Comstock, 286 Mass. 159, 167, 189 N.E. 785;Trade Mutual Liability Ins. Co. v. Peters (Mass.) 195 N.E. 900.

A summary statement of the testimony of the accountant is as follows: The accountant, after his employment by the residuary legatees, conferred with the executor on many occasions and was told that the delay in settlement of the estate was due to an action at law on a note made by the testatrix. The contestants wanted the executor removed. The accountant advised against that course and did not pursue it. Finding that no inventory or account had been filed, he prepared petitions and secured the allowance thereof ordering that these be filed. Then he urged that the executor file a bond with a surety. In September, 1930, in the name of one of the contestants, he prepared and filed a petition that such bond be filed. That petition was allowed in October, 1930. Shortly afterward such bond was filed. In April, 1931, he filed in the Probate Court his appearance for the estate. He appeared for the executor in the action on the note, and the case advanced for trial, and when reached caused it to be dismissed for failure to prosecute in October, 1931. The accountant did not know, until November, 1931, that the executor had appropriated money of the estate to his own use and that he was penniless. The executor was...