Lindsey v. Ogden

CourtAppeals Court of Massachusetts
Writing for the CourtGREANEY
Citation10 Mass.App.Ct. 142,406 N.E.2d 701
PartiesChristopher F. LINDSEY v. Alfred OGDEN, Special Administrator.
Decision Date30 June 1980

Page 701

406 N.E.2d 701
10 Mass.App.Ct. 142
Christopher F. LINDSEY
Alfred OGDEN, Special Administrator.
Appeals Court of Massachusetts, Suffolk.
Argued April 22, 1980.
Decided June 30, 1980.

Page 704

M. James Zelman, Boston, for Christopher F. Lindsey.

George M. Moriarty, Boston (Francis L. Coolidge, Boston, with him), for Alfred Ogden, special administrator.


GREANEY, Justice.

Anne C. Lindsey, a widow, died testate, domiciled in Massachusetts, on January 21, 1977, survived by three children Christopher Lindsey (Christopher), Leslie Huntoon (Leslie), and Anne Day Brooks (Brooks). Christopher filed objections to the allowance of his mother's will and to the appointment of the named executor. By agreement of all interested parties, Alfred Ogden (Ogden), the New York lawyer who drafted the will and the executor named therein, was appointed and gave bond as special administrator[10 Mass.App.Ct. 143] (G.L. c. 193, § 10). Christopher subsequently petitioned the Probate Court to remove Ogden as special administrator and to appoint a successor. That issue was tried concurrently with the petition seeking allowance of the will and Ogden's appointment as executor. At the conclusion of the evidence, Christopher waived his objections to the will. The probate judge found that Ogden had not violated his duties as special administrator and that he was suitable and qualified to be appointed as executor. Orders denying the petition for removal, admitting the will to probate, and appointing Odgen as executor followed.

On appeal, Christopher argues that the findings that Ogden was suitable to continue as special administrator and to be appointed as executor are clearly erroneous. Christopher also contends that he was denied access to various documents essential to a fair determination of several issues at the trial by the judge's erroneous ruling that the documents were the privileged "work product" of accountants and a tax lawyer hired by Ogden to assist in his evaluation of the ownership of certain Swiss bank accounts. The case was tried for twelve days; Ogden remained on the stand, mostly for cross-examination, for seven of those days. The judge made a report of material facts under G.L. c. 215, § 11, as appearing in St.1975, c. 400, § 58. The evidence, running to 1,630 transcript pages with forty-seven exhibits (including the impounded "work product" documents) is before us. In these circumstances, "it is our duty to examine . . . (the evidence) and decide the case according to our own judgment; but the discretion of the judge who heard the evidence and saw the witnesses is entitled to great weight, and his decision will not be disturbed unless we are satisfied that it was clearly erroneous and not supported by the evidence." Grossman v. Grossman, 343 Mass. 565, 566, 179 N.E.2d 900, 901 (1962), quoting from Osborne v. Craig, 251 Mass. 169, 172, 146 N.E. 263 (1925). See Foley v. Coan, 272 Mass. 207, 209, 172 N.E. 74 (1930); Markell v. Sidney B. Pfeifer Foundation, Inc., Mass.App. ---, --- - ---, 402 N.E.2d 76 (1980). a

The record discloses the following facts. The deceased, Anne Lindsey, was married to Kenneth Lindsey, a cofounder[10 Mass.App.Ct. 144] and director of Textron Company (Textron). Ogden

Page 705

is a New York attorney 1 whose practice has emphasized a specialty in the area of estates and trusts. He first met Christopher around 1960; they became social friends and through Christopher he met all the other members of the family, including the deceased. Ogden represented Christopher as his attorney in several specific matters between the years 1960 and 1972. These included drafting wills for Christopher and his wife, assisting in the refinancing of Christopher's debts with a bank, handling the payment of Christopher's bills from an account funded by his father, selling Christopher's New York apartment, and arranging a sizeable loan for Christopher from his parents. During this period Christopher was also represented by several other attorneys.

Kenneth L. Lindsey died in May, 1969, leaving wills executed (and disposing of property) under the laws of the United States and Great Britain. 2 The major asset of his estate in this country consisted of Textron stock representing approximately a ten percent interest in the company. Christopher, a stockbroker at the time of his father's death, retained Ogden to determine whether he could receive a brokerage commission for the sale of the Textron stock in the estate, to ascertain when he could expect a pour over trust created for his benefit to be funded from the estate, and to estimate the monetary amount he would receive as a final distribution. Christopher testified that his confidence in Ogden had eroded by February, 1971, because Ogden had failed to obtain satisfaction for him on these matters from the executor of his [10 Mass.App.Ct. 145] father's will. In 1971 or 1972, Christopher's sister Leslie engaged Ogden to investigate the possibility of surcharging the executor of her father's estate for failing expeditiously to dispose of the Textron stock in view of a declining market. Christopher was aware of and did not object to this assignment because of its potential benefit to the entire family. Eventually, Ogden reported to Leslie and her mother that an action to surcharge would not be successful, and the matter was not pursued. In 1972, Ogden represented Christopher for the last time by arranging a loan of some $150,000 from Christopher's mother and uncle.

In 1973, Ogden, at the deceased's request, became cotrustee of her revocable inter vivos trust. He also reviewed her estate plan and prepared a new will for her covering all her assets wherever situated. 3 Other than naming Ogden as executor, this new will made no major dispositional changes from the two it superseded and was the one admitted to probate in these proceedings. In 1975, Ogden refused to represent Christopher in further loan negotiations with his mother because of his representation of her. In 1976, at the deceased's request, Ogden redrafted her trust indenture to increase Christopher's interest therein. Following Anne Lindsey's death, Ogden commenced to marshal the assets of her estate in both Great Britain and the United States. In the course of this task, he learned of the existence of Swiss bank accounts in the names of the deceased's daughters and, as will be discussed later in this opinion, took certain steps with regard thereto. On September 14, 1977, he filed his inventory as special administrator.

General Laws c. 193, § 10, empowers a judge of the Probate Court to appoint a special administrator who should be suitable

Page 706

for and remain faithful to his trusts. General Laws c. 192, § 4, requires the Probate Court to issue letters testamentary, once a will has been duly proved and allowed, to [10 Mass.App.Ct. 146] the executor named therein "if he is legally competent and a suitable person." Under both statutes "(t)he appointee should be a fitting person having regard to the special conditions of each estate and those interested in it as creditors, legatees, and next of kin. Suitableness is capacity founded on the innate and acquired qualities of the particular person in his relation to the situation of the estate to be administered, and to those directly and indirectly to be affected by the settlement of the estate. Attention may be given to personal characteristics and to all the other causes, not easily susceptible of enumeration, rationally affecting a judicious selection." Morgan v. Morgan, 267 Mass. 388, 393, 166 N.E. 747 (1929), quoting from Davis, petitioner, 237 Mass. 47, 49-50, 129 N.E. 366 (1921). In passing upon the qualifications of the proposed fiduciary, the Probate judge of necessity retains a measure of discretion. However, if it is determined that the person named by the testatrix is suitable, the judge is obliged to appoint him. Grossman v. Grossman, 343 Mass. at 568, 179 N.E.2d 900. "It should also be borne in mind that the testator is disposing of his own estate, and is entitled to have it administered by the person he selects. Consequently, it requires a pretty strong objection to induce the court to refuse the appointment." Newhall, Settlement of Estates § 46, at 164 (4th ed. 1958).

With these standards in mind, we turn to Christopher's various contentions on the questions of Ogden's performance to date and his suitability, noting, by overview, that most of his complaints are directed at his mother's wishes, not at Ogden's execution of those wishes. First, it is said that the estate plan Ogden prepared for the decedent is detrimental to Christopher's interests. A comparison of the changes in his mother's estate plan between the time Ogden became her counsel and her death reveals that Christopher's life interest in the trust increased from a one-sixth to a one-third share (closer to par with his sisters 4 ), and that the trustees[10 Mass.App.Ct. 147] received expanded power to invade principal for Christopher's benefit. There is no support in the record for the proposition that the revised instruments resulted in uncontemplated adverse tax consequences to Christopher. The estate plan's substantive and tax provisions were drafted by Ogden in keeping with the decedent's directions and had her informed approval. See Grossman v. Grossman, 343 Mass. at 569, 179 N.E.2d 900.

Christopher also points to designation in the revised trust of his sisters as cotrustees as evidence that his interests were not served. He asserts that the appointment conflicts with another provision in the trust which prohibits a beneficiary from serving as a trustee and that his sisters, influenced by Ogden, have become hostile towards him. The judge could have found, based on Ogden's testimony and certain of the exhibits, that the deceased was aware of the conflict in the trust's provisions but that because she had not decided on...

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