Monk v. Everett
| Decision Date | 02 October 1931 |
| Parties | LORING M. MONK v. JOHN EVERETT, trustee. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
May 13, 1931.
Present: CROSBY PIERCE, CARROLL, WAIT, & FIELD, JJ.
Probate Court Decree. Trust, Appointment of trustee.
A will, admitted to probate in 1898, in its second clause directed the executor and trustee to pay a certain sum to the testator's widow monthly while she was his widow, and by a third clause gave the rest and residue of the estate "to my trustee hereinafter named" to be held in trust until the decease or remarriage of the widow, then to be divided equally among fifteen persons named; and a certain person was nominated and appointed in the will as executor and trustee, it being requested that he be exempt from furnishing sureties on his official bonds as such. He was appointed executor by the Probate Court. The widow filed a waiver of the provisions of the will in 1899 and in 1907 was assigned her dower. In 1917, one of the fifteen beneficiaries filed a petition alleging that the testator had given "certain estate . . . for the use and benefit of his widow" and that the person named as trustee had neglected to accept the trust, and praying that the petitioner be appointed "trustee as aforesaid." A decree making such appointment was entered which recited that the trustee named in the will had "declined said trust." The trustee thus appointed resigned in 1929 and his resignation was accepted. In the meantime, the person appointed executor had filed several accounts as such. No final account had been allowed. In
1930, he filed a petition for appointment as trustee for the benefit of the fifteen beneficiaries, and the petition was allowed without notice to parties interested. One of the fifteen, contending that the Probate Court had no jurisdiction to make such appointment without notice, petitioned for revocation of the decree. The petition was dismissed. The petitioner appealed. Held, that
(1) The proceedings relating to the appointment of a trustee in 1917 related merely to the trust for the benefit of the widow, who had waived the provisions of the will, and were immaterial;
(2) In the orderly course of administration, the person named as trustee in the will properly might delay to qualify as such until his accounts as executor were finally settled;
(3) No notice nor citation from the Probate Court was essential to the validity of the letters granted to the trustee named in the will or to the approval of his bond; his appointment was proper, and the petition to vacate it properly was dismissed.
PETITION, filed in the Probate Court for the county of Norfolk on December 16 1930, for the vacation of a decree entered on February 18, 1930, appointing the respondent trustee under the will of Earl Gannett, late of Canton.
The petition was heard in the Probate Court by McCoole, J. Material facts are stated in the opinion. By order of the judge, a final decree was entered dismissing the petition "without prejudice to the right to file a petition for the removal of the trustee." The petitioner appealed.
P.R. White, for the petitioner. J.F. Neal, for the respondent.
This is an appeal from a decree of the Probate Court dismissing a petition to vacate a decree dated
February 18, 1930, which appointed John Everett as trustee under the will of Earl Gannett. It raises the question whether upon the facts disclosed notice to parties interested under the will was essential to the validity of the appointment. It is conceded that the appointment was made without prior notice to parties interested of the pendency of the petition for appointment. There is no report of the evidence given at the hearing. The material facts must be gathered from the report of material facts made by the presiding judge pursuant to G.L.c. 215, Section 11; and from certain papers which this court on motion permitted to be brought before us to be referred to as if made part of the record from the Probate Court. These papers were the petition, citation and decree appointing John Everett as executor under the will of Earl Gannett; a waiver of the provisions of the will by the widow; the docket of the Probate Court in the matter of the estate of Earl Gannett from January 5, 1927; and the printed record transmitted to this court in the case of Everett v. Monk, reported in 261 Mass. 321. From these it appears that Earl Gannett died in 1898, leaving a will which was duly admitted to probate on October 19, 1898. The will, by its first clause, bequeathed $2,000 to a brother, Benjamin, to be paid as soon as might be after the testator's decease. By its second clause, it directed the executor and trustee named to pay to Mary J. Gannett $21 every calendar month for and during the time she remained the testator's widow, which she was to receive in full of all her rights in the testator's real and personal property including her widow's allowance. By its third clause it gave all the rest, residue and remainder of his estate "to my trustee hereinafter named" to be held in trust until the decease or remarriage of "said Mary J. Gannett," then to be divided equally among fifteen persons named. If any of the named donees died before the death of Mary J. Gannett, that person's share was to lapse unless he left issue, in which event the issue were to take. The testator nominated and appointed John Everett as executor and trustee, requesting that he be exempt from furnishing sureties on his official bonds as executor and trustee. The executor was to have $500 and "all expenses for his services as such executor." Letters testamentary as executor duly issued to Everett, and his bond without surety was filed and approved. There was no personal property in the estate. Everett entered upon the administration. The widow waived the provisions of the will on March 15, 1899. In 1907 she was assigned her dower. Petitions for the removal of Everett failed. He filed several accounts, five of which were referred to an auditor in 1918. This auditor found that Everett's administration has been negligent; his accounts have been incorrect; and litigation has been frequent and prolonged. The estate is not yet settled. Everett made no application for letters as trustee, and filed no bond as such, until 1930. Whether the widow is still living or has remarried does not appear.
In April, 1917, one of the fifteen donees, Loring M. Monk, filed a petition...
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