Morgan v. Morgan Union Mkt. Nat. Bank of Watertown v. Morgan

• Court: United States State Supreme Judicial Court of Massachusetts
• Citation: 267 Mass. 388,166 N.E. 747
• Parties: MORGAN v. MORGAN et al. UNION MARKET NAT. BANK OF WATERTOWN v. MORGAN et al.
• Decision Date: 04 June 1929

267 Mass. 388

166 N.E. 747

MORGAN

v.MORGAN et al.

UNION MARKET NAT. BANK OF WATERTOWN

v.MORGAN et al.

Supreme Judicial Court of Massachusetts, Middlesex.

June 4, 1929.

Appeal from Probate Court, Middlesex County; John C. Leggat, Judge.

Proceedings by Louise Morgan against Carl Morgan and others for appointment as administrator of the estate of Otto F. Morgan. From decree denying her petition and appointing another as administrator, petitioner appeals. Affirmed.

Harry F. R. Dolan, James H. Morson, and Joseph S. O'Neill, all of Boston, for appellant.

Virgil C. Brink and David Burstein, both of Boston, for A. Buttrick.

SANDERSON, J.

This is an appeal by Louise Morgan, widow of Otto F. Morgan, from a decree of the Probate Court appointing Allan G. Buttrick administrator of her husband's estate, and also an appeal from a decree dismissing her petition for appointment as administrtrix of the same estate.

The deceased had disappeared about February 24, 1928, and six weeks later the fact of his death first became definitely known. On March 1, 1928, a creditor's petition in bankruptcy was filed against him upon which he was duly adjudicated a bankrupt, and Allan G. Buttrick was appointed receiver and trustee in bankruptcy. He converted most of the assets of the estate into money, which he was holding at the time of the hearing in the Probate Court, and had been at all times willing to account to any court for his dealings with the property. On May 2, 1928, the bankruptcy petition was dismissed on the ground that when it was filed Morgan was dead. An order was then made that the receiver settle his accounts in the bankruptcy court and turn over the property to Morgan's administrator. On April 13, 1928, the widow filed her petition for appointment as administratrix. On April 20, 1928, upon petition of a creditor Allan G. Buttrick was appointed special administrator. On April 21, 1928, a petition for the appointment of Mr. Buttrick or some other suitable person as administrator was filed by a creditor. G. L. c. 193, § 1, provides that administration shall be granted to one or more of the persons thereinafter named if competent and suitable for the discharge of the trust and willing to undertake it, ‘unless the court deems it proper to appoint some other person.’ The widow of the deceased is named first, the next of kin second, and then follows the provision that ‘If none of the above are competent or if they all renounce the administration or without sufficient cause neglect for thirty days after the death of the intestate to take administration of his estate, one or more of the principal creditors. * * *’

On April 13, 1928, the judge heard testimony and received statements of counsel in lieu of testimony, on the petition of the widow, and found that she was not a suitable person to be appointed. He stated that he deemed it proper to appoint some other person as administrator. On June 27, 1928, a hearing was held on the creditor's petition. At this time the decree on the petition of the widow had not been entered and at the request of her counsel the judge stated that he would accept all testimony then to be introduced on both petitions, and that he would take into consideration as bearing on both testimony introduced and statements made at the previous hearing. To this method of procedure no objection was made, and a stenographer was then appointed to take evidence under G. L. c. 215, § 18. The case, however, had been partly heard before the arrival of the stenographer, and the record does not show the entire testimony offered on June 27, and contains none of the evidence considered by the judge on April 13. In this state of the record his conclusions, based upon what took place at both hearings, must stand unless it appears from the findings themselves that they are wrong as matter of law. The judge found that the deceased died more than 30 days before the creditor's petition for the appointment of an administrator was filed. The heirs at law within the Commonwealth and some creditors favored the appointment of Mrs. Morgan, but nearly all of the creditors both in number and in amount favored the appointment of Mr. Buttrick.

The deceased had been a dealer in motor vehicles and his wife handled a part of this business for him. The judge found that he had conducted his business largely by fraudulent means, having caused employees, relatives and friends to sign promissory notes secured by fictitious conditional sales agreements of motor vehicles which were never delivered or intended to be delivered; that the notes and conditional sales agreements had been fraudulently sold, pledged and mortgaged, and on many occasions the deceased had sold, pledged or mortgaged the same motor vehicle to different persons; that a number of replevin actions had been brought by claimants of authomobiles held by a warehouseman with whom the deceased had stored them; that other litigation had been begun or threatened; that the estate of the deceased was in a ...