Manning v. Mulrey

• Decision Date: 05 September 1906
• Citation: 192 Mass. 547,78 N.E. 551
• Parties: MANNING et al. v. MULREY et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

192 Mass. 547

78 N.E. 551

MANNING et al. v. MULREY et al.

Supreme Judicial Court of Massachusetts, Suffolk.

September 5, 1906

COUNSEL

P. H. Kelly, for appellants.

Cronin & Cronin, for appellees.

OPINION

MORTON, J.

One Michael Mulrey of Boston died intestate, unmarried and without issue in July, 1876, seised in fee of certain real estate situate in that part of Boston known as West Roxbury and leaving, as his heirs at law, the complainant Carberry the only child of a deceased brother James, the complainant Manning and two brothers John Mulrey and Michael S. Mulrey children of a deceased brother Patrick, and a brother Timothy D. Mulrey the father of the respondents. The brother Timothy was duly appointed administrator. He rendered the estate insolvent and in November, 1879, was duly licensed to sell the real estate for payment of debts and sold and conveyed the same as such administrator, by previous arrangement, to one Dowd for the nominal sum of $500. Dowd as part of the same transaction conveyed the property to said Timothy in his own right also for the nominal sum of $500. No money passed from Dowd to the administrator or from the latter to the former. At least there was no evidence warranting such finding. Timothy D. Mulrey died in June, 1901, leaving a will by which he devised the real estate in question to the respondents. The plaintiffs are heirs at law of Michael and this bill has been brought to set aside, so far as they are concerned, the conveyances from the administrator to Dowd and from Dowd to the said Timothy, and to recover the complainant's shares of the real estate thus conveyed. There was a demurrer which was overruled without prejudice to the right of the defendants to raise the same questions at the trial upon the merits. The respondents appealed, but have not argued the demurrer; being apparently content to argue the same question on the merits, which they could properly do. We therefore treat this demurrer as waived. The bill was dismissed as to the complainant Manning, and a decree was entered in favor of the complainant Carberry from which also the respondents appealed. No appeal was taken from the decree dismissing the bill as to the complainant Manning. Since the bill was brought the respondent Thaddeus F. Mulrey has died intestate, unmarried, and without issue leaving one John R. Mulrey, a brother, as one of his heirs at law. The said John R. Mulrey was admitted on his petition as a party defendant, and after a hearing, which was the second hearing in the case, the bill was dismissed as to him. No appeal was taken from this decree. When the said Timothy was appointed administrator, he was also guardian of the complainant Carberry. It did not appear that he ever rendered any account as such guardian. He rendered a first and final account as administrator which after due notice was allowed. In this account he charged himself with $500 as the proceeds of the real estate. It was inventoried at $2.700. And he was allowed payments and charges to the amount of $1,245.44 leaving a balance due him of $700.44. The complainant Carberry testified, amongst other things, that she never knew that the land was Timothy D. Mulrey's till after his death, that she always supposed that it belonged to her uncle Michael's estate, and that her uncle Timothy had charge of it as administrator and that her uncle Timothy never said anything to her about it nor she to him. All of the evidence was taken by a commissioner and is reported.

Without undertaking to review the evidence further we are of opinion that the presiding justice could have found that the sale by the administrator to himeslf was in fraud of the complainant Carberry's rights, and was therefore void. That, for aught that appears, is what he did find. It cannot be said that such a finding was clearly erroneous. Regesters' Sons Co. v. Reed et al., 185 Mass. 226, 70 N.E. 480; Dickinson v. Todd, 172 Mass. 183, 51 N.E. 976. The respondents, assuming that the $500 with which the administrator charged himself is to be treated as proceeds of the sale, contend that the decree was erroneous in failing to allow them therefor, and also in failing to allow them for sums expended by the administrator in the payment of taxes and otherwise in the preservation of the estate. But the case is not that simpliciter of a purchase by a trustee of property belonging to his cestuis. There was, or could have been found to be actual fraud on the part...