Knowles v. Perkins

• Decision Date: 08 January 1931
• Citation: 174 N.E. 221,274 Mass. 27
• Parties: KNOWLES v. PERKINS (two cases).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

274 Mass. 27

174 N.E. 221

KNOWLES

v.PERKINS (two cases).

Supreme Judicial Court of Massachusetts, Essex.

Jan. 8, 1931.

Appeal from Probate Court, Essex County; Alden P. White, Judge.

Two separate petitions for distribution in two different estates, brought by Bertha M. Knowles against George H. Perkins, administrator of one of the estates, and administrator with the will annexed of the other estate. From the decrees, which were substantially the same on each petition, the petitioner appeals.

Decree in each case affirmed.

E. Foss, of Newburyport, for appellant.

E. R. Anderson, of Boston, for appellee.

RUGG, C. J.

The same person brought in a probate court two petitions in two different estates, of each of which the appellee was administrator. In each estate there was intestate property to be distributed. In each estate the appellee had filed a final account of his administration setting out payments of the entire balance thus to be distributed, after payment of debts and other proper charges, to certain named persons as collateral next of kin of the decedent. His account in each estate was allowed after due notice by publication and mailing to all persons known to him to be interested in the estate. The petitioner was a grandniece of each decedent, as was also another named person, and each was a next of kin and entitled to share in each estate. No notice was sent to either because both were unknown to the accountant. After the lapse of several years, the petitioner first learned of the death of each decedent. She then brought an appropriate petition in the probate court to assert her rights. The same decree in substance was entered on each petition, setting out that the account as allowed showed a distribution of the balance to the persons who then appeared to be the persons who would have been entitled to receive that balance if a previous order had been made directing its distribution among the next of kin; that it appeared at that time that the account ought to be allowed; that the petitioner and the other grandniece were of the next of kin of the decedent and entitled to share in the distribution, but their existence was not known to the accountant and through mistake and without negligence or fault on his part they were omitted in making the distribution. The decree then names the next of kin of the decedent and states their relationship, the fractional share of the estate, and the precise sum to which each is entitled. The decree then proceeds in these words: ‘But, it appearing that all of said balance has been paid by said administrator in good faith to the distributees named in said account and that said account has been allowed by a decree of court which, by the provisions of G. L., c. 206, § 23, had the same effect to discharge and exonerate the accountant and his sureties from further liability as if such payment had been made under a previous order of the court for distribution, it is further decreed that this decree shall not require said administrator to take further action nor impose upon him any liability but shall take effect only to correct the error in distribution made in said account and to establish the right of the petitioner’ and the other grandniece named ‘to their distributive share of said estate and to give to them and to said administrator such rights against the several distributees named in said account,’ followed by the names of such distributees, ‘as arise from the correction of said error in said account.’ The findings of fact are that the accountant had known or been neighbor to each decedent for many years, had inquired of one of them who were the next of kin of herself and her brother, the other decedent who predeceased her, and supposed that the list of such next of kin given him by her was correct; and that he inquired also of the husband of another next of kin. The accountant knew that each decedent had a half brother who had died in the county in this commonwealth wherein the accountant lived, but he did not examine the probate records to ascertain the next of kin of such half brother. If he had done so, he would have found the name of a sister who is alleged in the petition to be the grandmother of the petitioner. It is not alleged or found that possible trace of the other omitted grandniece would have been discovered by examination of those probate records.

The contention that the accountant did not act in good faith cannot be supported. The finding of the trial judge after seeing and hearing him testify is unequivocally in favor of the honesty of his conduct. There is nothing in the record to shake that finding. Cleaveland v. Draper, 194 Mass. 118, 80 N. E. 227;Nelson v. Wentworth, 243 Mass. 377, 137 N. E. 646;Meyerovitz v. Jacobovitz, 263 Mass. 47, 48, 160 N. E. 331.

The soundness of the decree depends upon the interpretation of G. L. c. 206, § 23. Its words are: ‘If without an order of court an administrator pays or delivers to the widow or husband of the deceased or to any other person any money or other property in his hands, and thereafter renders an account on oath with a full and detailed statement thereof, and after notice it appears that the persons to whom such money has been paid or property delivered would have been entitled to an order of court for such payment or delivery and that such account ought to be allowed, the probate court may make a decree which shall have the same effect to discharge and exonerate the accountant and his sureties from further liability as if such payment or delivery had been made under a previous order of the probate court.’ This section was first enacted in substance by St. 1894, c. 303. It has never been construed and has been mentioned but once. Burns v. Hovey, 242 Mass. 363, 366, 136 N. E. 246.

It is not necessary to examine the scope and the implications of early decisions, rendered before the enactment of modern statutes, as to the jurisdiction of probate courts to allow accounts of executors or administrators showing payments of legacies or distributive shares to those entitled or supposed to be entitled to receive them. Cowdin v. Perry, 11 Pick. 503;Granger v. Bassett, 98 Mass. 462;Browne v. Doolittle, 151 Mass. 595, 25 N. E. 23;Newell v. Peaslee, 151 Mass. 601, 604, 25 N. E. 26. Under those cases, decided before the enactment of St. 1894, c. 303, an administrator would not be protected by the allowance of his account in a case like the present. The procedure and rights established under that statute, now embodied in said section 23 already quoted, alone are involved in these cases.

The question is whether, in order to protect himself in making distribution of intestate property, an administrator must always take the precaution to act pursuant to an order of distribution entered under the inherent or special statutory authority of probate courts, or whether he may be protected by a decree allowing an account showing such distribution after the usual notice. Manifestly a decree of distribution as basis for making payments to the next of kin is the safe course for an administrator. Specific notice thus is given to the world of the fact that the next of kin are to be ascertained by the court for the purposes of a distribution of the estate. The appellant contends that, if the administrator makes distribution without a preceding decree for distribution and his account is allowed by appropriate decree showing distribution, such decree bars only those to whom payments by way of distribution are shown, but does not bar any next of kin, to whom no such payment has been made and who was not actually a party to that proceeding, from collecting the share in truth due him from the administrator. The appellee contends that said section 23 in a case like the...