Lynde v. Vose

• Decision Date: 02 January 1951
• Citation: 326 Mass. 621,96 N.E.2d 172
• Parties: LYNDE v. VOSE et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 172

96 N.E.2d 172

326 Mass. 621

LYNDE v. VOSE et al.

Supreme Judicial Court of Massachusetts, Barnstable.

Argued Nov. 8, 1950.

Decided Jan. 2, 1951.

A. L. Taylor, B. Gilbert, Boston, for conservator.

No argument nor brief for the guardian ad litem.

Before QUA, C. J., and LUMMUS, RONAN, WILKINS, and COUNIHAN, JJ.

LUMMUS, Justice.

On March 23, 1926, Mabel B. Lynde was appointed conservator of the property of Bessie Wilbur, her sister, with the assent of her two brothers George B. Wilbur and Charles A. Wilbur, who with the conservator herself were her heirs presumptive. G.L.(Ter.Ed.) c. 201, § 16, as it appears in St.1945, c. 728, § 2. On October 1, 1949, Bessie Wilbur died intestate, and on November 8, 1949, Mabel B. Lynde was appointed administratrix of her estate, with the assent of all three of the heirs and next of kin.

The twenty-second and twenty-third accounts of Mabel B. Lynde as such conservator were filed after the death of the ward, and show distribution of the balance of said accounts to Mabel B. Lynde as such administratrix. She and her two brothers assented to the allowance of these accounts. But on January 24, 1950, the Probate Court appointed Leroy C. Vose 'guardian ad litem or next friend for such person [Bessie Wilbur], to represent her interest in said case.' From the decree making such appointment all the three heirs at law and next of kin appealed.

Under G.L. (Ter.Ed.) c. 215, § 9, as it appears after St.1945, c. 469, § 1, and St.1947, c. 360, appeal was given to 'A person aggrieved by an order, decree or denial of a probate court', and this court was given 'like powers and authority in respect thereto as upon an appeal in a suit in equity under the general equity jurisdiction.' Procedure in a probate appeal follows that in equity so far as applicable and practicable. Wiley v. Fuller, 310 Mass. 597, 599, 39 N.E.2d 418. Under general equity practice appeals are allowed from interlocutory as well as final decrees. G.L.(Ter.Ed.) c. 214, §§ 19, 26. But an appeal from an interlocutory decree does not come before this court until a final decree has been entered. Lowell Bar Association v. Loeb, 315 Mass. 176, 187-188, 52 N.E.2d 27. Vincent v. Plecker, 319 Mass. 560, 562-563, 67 N.E.2d 145. Whether the decree appealed from in the present case is now before us depends upon whether it is or is not a final decree.

One test of finality was stated in Vincent v. Plecker, 319 Mass. 560, 564, note 3, 67 N.E.2d 145, 148, in these words 'Though part of a single controversy remains undetermined, if the decree is to be executed presently, so that appeal would be futile unless the decree could be vacated by the prompt entry of an appeal in the full court, the decree is a final one.' This test of finality was applied in New England Theatres, Inc., v. Olympia Theatres, Inc., 287 Mass. 485, 490, 192 N.E. 93, where a decree continuing a receivership was held appealable as a final decree. So in Ferrick v. Barry, 320 Mass. 217, 219, 68 N.E.2d 690, a decree dissolving a partnership and ordering receivers to wind up its affairs and distribute its assets, was held appealable as a final decree. See also Kasishke v. Baker, 10 Cir., 144 F.2d 384, certiorari denied 325 U.S. 856, 65 S.Ct. 1185, 89 L.Ed. 1976; Mass v. Lonstorf, 6 Cir., 166 F. 41, 44.

In the present case, if the decree appointing the guardian ad litem should remain in force, compensation for his services would be a charge against the intestate estate. No remedy other than appeal would be open to the administratrix or to the heirs and next of kin, to free them from what they contend is a useless and illegal charge. We are of opinion that the appeal was proper, and that the matter should be considered and decided now.

Coming to the merits, G.L. (Ter.Ed.) c. 206, § 24, as it appears in St.1938, c. 154, § 1, provides that 'If the interest of a person unborn, unascertained, or legally incompetent to act in his own behalf, is not represented except by the accountant, the court shall appoint a competent and disinterested person to represent his interest in the case.' Plainly Bessie Wilbur, who had died, was not 'unborn,'...