Massachusetts Bonding & Ins. Co. v. Keefe

• Decision Date: 18 December 1956
• Citation: Massachusetts Bonding & Ins. Co. v. Keefe, 127 A.2d 266, 100 N.H. 361 (N.H. 1956)
• Parties: MASSACHUSETTS BONDING & INSURANCE COMPANY v. F. Clyde KEEFE, Special Adm'r. F. Clyde KEEFE, Special Adm'r. v. Harold W. SKILLINGS et al.
• Court: New Hampshire Supreme Court

Page 266

127 A.2d 266

100 N.H. 361

MASSACHUSETTS BONDING & INSURANCE COMPANY v.F. Clyde KEEFE, SpecialAdm'r.

F. Clyde KEEFE, SpecialAdm'r. v.Harold W. SKILLINGS et al.

Supreme Court of New Hampshire.

Argued Nov. 7, 1956.

Decided Nov. 29, 1956.

Rehearing Denied Dec. 18, 1956.

McCabe & Fisher and Harold D. Moran, Dover, for plaintiff.

Russell H. McGuirk, New Market, and Robert B. Donovan, Exeter, for defendant.

KENISON, Chief Justice.

The first probate appeal raises the question whether the plaintiff's petition to reopen the conservator's account stated a cause of action.The defendant's motion to dismiss the petition is treated here as it was below, as a demurrer to the petition.Bell v. Pike, 53 N.H. 473, 475.It is alleged in the petition that Harold W. Skillings while serving as conservator was indebted to Sarah A. Rollins on notes totalling several thousand dollars which the petition describes in detail.It further alleges that as conservator he withdrew a savings account of $3,000 of Sarah A. Rollins, that he collected rents, and other moneys belonging to her but that his final account as conservator, which was filed and allowed by the probate court, showed that he had received no assets, had expended no money and that there was no balance in the conservatorship.The petition further alleges that Skillings thereby acted fraudulently, in violation of his fiduciary trust and that the allowance of his account by the probate court was obtained by his fraudulent representations.While the allegations in this petition may not be 'model forms of unimpeachable clarity', Geers v. Geers, 95 N.H. 316, 317, 63 A.2d 244, 245, they were sufficient to establish a basis for reopening the conservator's account and were understandable to both Court and counsel.Ayer v. Messer, 59 N.H. 279, 280;Reed v. Prescott, 70 N.H. 88, 46 A. 457;RSA 514:8.Although an allegation of fraud couched in general terms is bad on demurrer, Belisle v. Belisle, 88 N.H. 459, 461, 191 A. 273, the petition alleged sufficient facts and details of the alleged fraud and breach of fiduciary duty to justify denying the motion to dismiss.Butler v. Legro, 62 N.H. 350.

The contention that the petition should be dismissed because of the negligence and laches of the plaintiff in not discovering the alleged fraud and breach of fiduciary duty at an earlier date cannot be sustained.The petition was brought within seven months of the appointment of the special administrator which was not an unreasonable time under the circumstances of this case.Annotation, 50 A.L.R. 61;In re Moore's Appeal, 112 Me. 119, 90 A. 1088.Furthermore, it may be presumed that both the probate court and the Superior Court were aware of the tangled and unsavory state of the financial affairs of Sarah A. Rollins which resulted in the loss of some of the property and in considerable litigation.State v. Skillings, 98 N.H. 203, 97 A.2d 202;Towle v. Yeaton, 97 N.H. 427, 90 A.2d 496;Yeaton v. Skillings, 100 N.H. 316, 125 A.2d 923.This state of her affairs is an additional reason for not rigidly limiting the time within which the conservator's account could be reopened.By the weight of authority non-disclosure of self-dealing by a fiduciary is a proper reason for reopening a fiduciary's account which has been previously allowed by a probate court.Donnelly v. Ritzendollar, 14 N.J. 96, 101 A.2d 1;Annotation, 1 A.L.R.2d 1060.

The power of the probate court in this state to reopen a fiduciary's account for good cause was established at an early date.Kittredge v. Betton, 14 N.H. 401.Good cause may consist of fraud, misrepresentation, self-dealing by the fiduciary, mistake, or any combination of these Raymond v. Goodrich, 80 N.H. 215, 116 A. 38;Knight v. Hollings, 73 N.H. 495, 63 A. 38.In the present casethe Court has found good cause to reopen the conservator's account and has not accepted the plaintiff's contentions that the defendant was negligent or guilty of laches.This finding is supported by the evidence and must be sustained.Indian Head Nat. Bank v. Theriault, 96 N.H. 23, 27, 69 A.2d 226.

The plaintiff complains of the procedure followed in the Superior Court on the appeal from the probate court's decree allowing the conservator's...