Moushegian v. Sheppard

• Decision Date: 07 April 1932
• Citation: 279 Mass. 49,180 N.E. 619
• Parties: MOUSHEGIAN v. SHEPPARD.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

279 Mass. 49

180 N.E. 619

MOUSHEGIAN

v.SHEPPARD.

Supreme Judicial Court of Massachusetts, Middlesex.

April 7, 1932.

Appeal and Report from Probate Court, Middlesex County; Collen C. Campbell, Judge.

Petition by Garabed N. Moushegian against William T. Sheppard, executor of the will of Ellen M. Holden, deceased, for services rendered. From a decree dismissing the petition, petitioner appeals.

Reversed and rendered.

R. B. Walsh and F. F. O'Donnell, both of Lowell, for appellant.

M. J. Cohen, of Lowell, for appellee.

SANDERSON, J.

This is a petition filed in the probate court by an attorney at law under G. L. c. 215, § 39, for services alleged to have been rendered in connection with the administration of the estate of a deceased person. From a decree dismissing the petition the petitioner appealed.

The statute was first enacted in 1915 (St. 1915, c. 151, § 6). The part material to this case is in these words: ‘Probate courts may ascertain and determine the amount due any person * * * for services rendered by any person in connection with the administration of the estate of a deceased person * * * and payment of said amount when ascertained and determined to be due may be enforced summarily by said court upon motion of the person to whom the amount is due in the same manner as a like payment under a decree in equity may be enforced, and execution may also be issued therefor against the executor * * * personally as upon a judgment at law.’

The judge of probate made a report of facts in the following terms: ‘William T. Sheppard was the person named executor in the last will of one Ellen M. Holden, who died in Billerica on October 14, 1929. On November 1, 1929, the said Sheppard learning that this will, in which he was named executor, was to be contested by certain legatees under a prior will, employed Mr. Moushegian to represent him as counsel in the expected litigation. Thereafter the petitioner rendered legal services to Sheppard. These services consisted of preparation of the case in support of the will, of argument before the Probate Court in opposition to the contestant's motion to frame jury issues, of argument before the Supreme Judicial Court upon appeal from the decision of the judge of probate disallowing such issues, of legal services in and out of court in connection with the appointment of Sheppard as special administrator of the estate of Ellen M. Holden pending the determination of the litigation, of trial before a jury in the Superior Court of the issue whether the testatrix was of sound mind at the time of the execution of said will; of argument before the judge of probate of a motion for counsel fees brought by the unsuccessful contestant of the will and of preparation in part of a brief upon appeal to the Supreme Judicial Court from the decision of the judge of probate denying said motion, all of which services are specified in detail in the petitioner's itemized statement annexed to the petition. I find as a fact that these services were rendered to the executor as set forth in that statement, that they were of benefit to the estate and that a fair and reasonable fee for such services is Twenty-seven hundred ($2,700.00) dollars. I further find that the said will of Ellen M. Holden in which Sheppard was named executor, was proved and allowed in the Probate Court for Middlesex County on January 12, 1931, and that upon that date the said William T. Sheppard was appointed executor under said will and duly qualified by giving bond. I further find so far as it is a question of fact that the services so rendered by the petitioner from November 1, 1929, to and including April 30, 1931, were rendered in connection with the estate of the said Ellen M. Holden. I also find that the petitioner has incurred traveling expenses as set forth in his itemized statement in the amount of $45 and that the same were expended by him in connection with the rendition of the services hereinbefore stated. I further find that the said William T. Sheppard has not, as special administrator or as executor or otherwise, included or asked to be allowed for any sum on account of the services of the petitioner herein referred to in any probate account filed by him. The petitioner does not claim he has any standing under G. L. c. 215, § 45, but claims under section 39 wherein it reads-‘or for services rendered by any person in connection with the administration of the estate of a deceased person.’ The sole question as I understand it is whether or not an attorney who has been requested by a person (named as exector in a will) to represent him in a contested will case can come into Probate Court under G. L. c. 215, § 39, and have the Probate Court determine the amount due him for professional services rendered in connection with said estate. I ruled that § 39 did not give an attorney such a right and dismissed the petiton without prejudice. If I was wrong in dismissing the petition for want of jurisdiction, I feel that after a full and complete hearing of several days that the facts would justly warrant a finding in favor of the petitioner for the amount as above stated, namely $2,700.00.'

G. L. c. 206, § 16, provides: ‘An executor, administrator, guardian, conservator or trustee shall be allowed his reasonable expenses incurred in the execution of his trust, and shall have such compensation for services as the court may allow.’ Under G. L. c....