Lannin v. Buckley

• Decision Date: 28 June 1929
• Parties: LANNIN et al. v. BUCKLEY et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

268 Mass. 106

167 N.E. 258

LANNIN et al.

v.BUCKLEY et al.

Supreme Judicial Court of Massachusetts, Suffolk.

June 28, 1929.

Appeal from Probate Court, Suffolk County; Arthur W. Dolan, Judge.

Petition by Joseph J. Lannin and another, trustees under the will of C. James Connelly, for allowance of accounts, opposed by Annie E. Buckley and others. From a decree allowing the accounts, contestants appeal. Affirmed.

See, also, 256 Mass. 78, 152 N. E. 71.

John Louis Sheehan, of Boston, and John A. McAleer, for appellants.

John J. Mansfield and James F. Creed, both of Boston, for appellees.

RUGG, C. J.

This is an appeal from a decree of the probate court entered after rescript from this court allowing accounts of trustees under a will. The case at its earlier stage is reported in 256 Mass. 78, 152 N. E. 71. The rescript issued pursuant to that decision contained this direction: ‘Case is remanded to the Probate Court for further hearing to correct errors in computation, and for such amendments in the schedules as are thereby made necessary. * * * When changes' in the accounts ‘not inconsistent with the opinion are made, decrees allowing the accounts as amended are to be entered.’

After the rescript, ‘all the remaining beneficiaries, who were not parties to the first appeal’ (as stated in the brief for the contestants), appeared in opposition to the accounts. We do not understand that it is argued that the present contestants stand on any different or better footing than those who were contestants before. But, however that may be, seemingly they joined with those earlier contestants in all subsequent proceedings and are represented by the same counsel. They must come into the litigation as they find it.

After the rescript the present contestants of the accounts filed a paper which they term in their brief ‘the answer and the plea and averment in equity.’ This paper in substance is not and cannot be a ‘plea’ in equity in any proper sense. It is lacking in every essential of a plea, even if it be assumed, which we do not decide, that a plea can ever be proper in a proceeding like the present. Reilly v. Selectmen of Blackstone (Mass.) 165 N. E. 660. ‘Answer’ and ‘averment’ may be taken together as indicating an answer. It has not been argued that an answer would be improper under G. L. c. 206, § 4, if seasonably filed in accordance with probate practice or by permission of the court. If it be assumed that an answer to an account is permissible, it is not usual because the account as filed is deemed open for every proper adjustment without further pleading. The paper here filed, however, was not an answer in accordance with proper equity pleading. Piper v. C. L. Hayden Co., 254 Mass. 317, 319, 150 N. E. 155, and cases cited. Whatever may be the effect of the provision of G. L. c. 206, § 4, that ‘proceedings' upon probate accounts ‘shall be considered for all purposes to be proceedings in equity,’ it cannot be regarded as requiring the importation into such proceedings of all the niceties of equity pleading. The principle that facts well pleaded in the answer are taken as true, upon which the contestants rely, Public Service Commissioners v. New England Telephone & Telegraph Co., 232 Mass. 465, 122 N. E. 567, 4 A. L. R. 1662;Polish Political Club v. Cloper, 260 Mass. 559, 157 N. E. 705, is utterly inapplicable to the case at bar.

There had been one full hearing in the probate court on the account before the case came to this court at its earlier stage. Whether practice in the probate court in this particular be regarded as according to common law, West v. Platt, 124 Mass. 353, or as according to equity, Day v. Mills, 213 Mass. 585, 100 N. E. 1113, or as peculiar to itself, the court could not be required in these circumstances to proceed to a hearing outside the terms of the rescript. It would be improper to open for further hearing the precise issues presented at the earlier hearing and then disposed of, unless there has been accident or mistake by parties or counsel, or a misunderstanding by the court. There was not on this record exercise of discretion by the judge to reopen any issues or to try any questions except those prescribed by the rescript. So far as his refusal to enter into a hearing of facts and to open issues to that end rested in sound judicial discretion, it must be taken to have been exercised against the contestants. Only questions of law are presented for consideration.

The decision in writing...