Macomber v. King
| Citation | 288 Mass. 381,192 N.E. 926 |
| Parties | MACOMBER v. KING et al. |
| Decision Date | 26 November 1934 |
| Court | United States State Supreme Judicial Court of Massachusetts |
OPINION TEXT STARTS HERE
Appeal from Probate Court, Bristol County; Hitch, Judge.
Accounting by Edward L. Macomber, administrator with will annexed of Elizabeth R. King, deceased, wherein the administrator presented petition to reopen case for hearing of further evidence, which petition was opposed by Albert L. King, Jr., and others. From a decree allowing the first account of the administrator with the will annexed of the estate of Elizabeth R. King, deceased, Albert F. King, Jr., appeals.
Affirmed.
A. F. King, Jr., and E. A. King, for appellant.
R. C. Westgate and H. S. R. Buffinton, both of Fall River, for appellee.
This is an appeal from a decree allowing the first account of the administrator with the will annexed of Elizabeth R. King, deceased, testate. The appellant is her son.
After the hearing on the account had been closed, the accountant presented a petition to reopen the case in order that there might be introduced certain material evidence inadvertently omitted. There was no error in the allowance of this motion and receiving further evidence. Reopening the case for reception of additional testimony was within the discretion of the trial judge. Smith v. Merrill, 9 Gray, 144;Reynolds v. Missouri, Kansas & Texas Railway Co., 224 Mass. 379, 387, 113 N. E. 413;Short v. Farmer, 260 Mass. 102, 104, 156 N. E. 735.
There is no report of the evidence. At the request of the appellant the trial judge filed his findings of material facts. These must be accepted as true since they are not mutually inconsistent or plainly wrong.
The payment to Elizabeth G. E. King, a daughter of the testatrix, for services and expenses, is challenged. The finding is that these disbursements were proper and necessary for the comfort of the testatrix and that the daughter gave up a position as school teacher in order to take care of her mother, that the price charged was reasonable, and that she expected to be paid. The circumstance that these disbursements were made and services rendered by a daughter is no bar to payment. The testatrix understood, or as a reasonable person ought to have understood, that these disbursements and services were not gratuitous but that she was to pay for them. There was no error in the allowance of this item as a charge. Sherry v. Littlefield, 232 Mass. 220, 122 N. E. 300;French v. Bray, 263 Mass. 121, 123, 160 N. E. 424;Tower v. Jenney, 279 Mass. 208, 181 N. E. 123.
The payment of this account was rightly made out of the money of the estate in savings banks. The will of the testatrix was somewhat informal. By it she disposed of several parcels of real estate by specific devise, and gave several small pecuniary bequests. After a devise of a life estate to her husband of the half of the homestead farm owned by the testatrix and several bequests, occur these words: ‘The remainder is to be kept in the banks and the interest used to pay the tax on my part of the estate, and for necessary repairs to buildings while my husband lives.’ This is followed by other pecuniary bequests and by specific devises. The quoted words constitute a general and not a specific legacy and did not create a trust. Cooney v. Whitaker, 192 Mass. 596, 78 N. E. 751;Bates v. Kingsley, 215 Mass. 62, 102 N. E....
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