New England Trust Co. v. Paine

• Decision Date: 01 February 1945
• Parties: NEW ENGLAND TRUST CO. v. PAINE et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

317 Mass. 542

59 N.E.2d 263

NEW ENGLAND TRUST CO.

v.PAINE et al.

Supreme Judicial Court of Massachusetts, Middlesex.

Feb. 1, 1945.

Proceedings by the New England Trust Company, trustee, against Mary W. Paine and others, beneficiaries of the trust created by the sixth article of the will of James A. Woolson, deceased, for approval of trustee's account. From a decree allowing the seventh to the thirty-fifth accounts inclusive, respondents appeal.

Reversed and remanded.Appeal and Report from Probate Court, Middlesex County; Poland, judge.

Before FIELD, C. J., and LUMMUS, QUA, RONAN, and SPALDING, JJ.

H. D. McLellan, G. B. Rowlings, and A. R. Stokes, all of Boston, for petitioner.

F. W. Campbell and J. Wiggin, both of Boston, for respondents.

QUA, Justice.

The respondents, beneficiaries of the trust created by Article Sixth of the will of James A. Woolson, late of Cambridge, appeal from a decree of the Probate Court allowing the seventh to the thirty-fifth accounts, inclusive, of the New England Trust Company as trustee.

The administration of this trust began May 4, 1904. The first six accounts covered the period to May 16, 1910, and were allowed at different times down to January 16, 1911, when the sixth account was allowed. The seventh to thirty-fifth accounts, inclusive, covered the period from May 16, 1910, to July 8, 1939. At the hearing on these later accounts the judge ruled that by reason of the repeal of G.L.(Ter.Ed.) c. 206, § 19, by St.1938, c. 154, § 2, the items of the first six accounts were not open for review and refused to hear evidence relating to those accounts. He entered the decree appealed from on the seventh to the thirty-fifth accounts, inclusive, ‘without prejudice to any rights which the respondents or any of them may have incident or consequent to their petition [then on file] to vacate the decree allowing the first six accounts of the accountant.’

The appellants contend that there was error in the judge's refusal to reopen the earlier accounts at the hearing on the later accounts and in entering the decree upon the later accounts without prejudice as hereinbefore stated. They also contend that there was error in the refusal of the judge to surcharge the trustee for alleged breaches of trust during the period covered by the later accounts with which the judge did undertake to deal.

There was error in the refusal to reopen and consider the first six accounts and in entering the decree on the later accounts without prejudice. The Revised Laws of 1902 were in force when the earlier accounts were allowed. While the Revised Laws, c. 150, §§ 17 and 22, and the corresponding provisions of the General Laws and of the Tercentenary Edition, c. 206, §§ 19 and 24, were in force before the enactment of St.1938, c. 154, upon the settlement of an account, ‘all former accounts of the same accountant * * * [might] be so far opened as to correct a mistake or error therein’, except as to matters in dispute previously heard and determined by the court, which matters could be again brought in question only by leave of the court. R.L. c. 150, § 17. G.L. and G.L.(Ter.Ed.) c. 206, § 19. These statutes were held to permit a full and complete investigation of the items of the earlier accounts. Barrett v. Briry, 256 Mass. 45, 152 N.E. 79;Coulson v. Seeley, 277 Mass. 559, 562-563, 179 N.E. 171;Waitt v. Harvey, 312 Mass. 384, 396, 45 N.E.2d 1. There is nothing in the record to show that any of the items of the earlier accounts was actually in dispute and was heard and determined by the court. We must assume that none of them was actually in dispute, heard and determined. Barrett v. Briry, 256 Mass. 45, 46, 152 N.E. 79;Coulson v. Seeley, 277 Mass. 559, 562, 563, 179 N.E. 171;Greene v. Springfield Safe Deposit & Trust Co., 295 Mass. 148, 151, 3 N.E.2d 254. To be sure, R.L. c. 150, § 22, provided a special method by which it was possible to have all the items of an account definitely settled, whether or not they were then actually disputed and heard. The same provisions were continued in the successor section, G.L. and G.L.(Ter.Ed.) c. 206, § 24, but it does not appear that any of the earlier accounts was settled by the method so provided. Those accounts must therefore be deemed to have been allowed subject to the provisions of R.L. c. 150, § 17, with respect to being reopened upon the settlement of subsequent accounts. Greene v. Springfield Safe Deposit & Trust Co., 295 Mass. 148, 151, 3 N.E.2d 254. It follows that the decrees allowing the first six accounts were not final decisions upon the items contained in those accounts. Those items could be tried out at the hearing upon any later account.

The subsequent enactment of St.1938, c. 154, repealing G.L. (Ter.Ed.) c. 206, § 19 (the successor to R.L. c. 150, § 17), completely redrafting G.L.(Ter.Ed.) c. 206, § 24 (the successor to R.L. c. 150, § 22), and inserting therein a provision that ‘after final decree has been entered on [an account filed in a Probate Court] it shall not be impeached except for fraud or manifest error,’ did not have the effect of converting the decrees on the earlier accounts, which were subject as of right to reopening generally by any interested party, into fully effective final decrees, subject only to being impeached, as are other final decrees in various ways, for ‘fraud or manifest error.’ The rendition of a final decree determinative of the rights of parties in litigation is preeminently a judicial act. Denny v. Mattoon, 2 Allen 361, 379,79 Am.Dec. 784. Such an act cannot be accomplished by legislative fiat. An attempt to do so would violate the fundamental principle of the separation of powers set forth in art. 30 of the Declaration of Rights. Decisions of this court hereinbefore cited show that as the law stood when the first six accounts were allowed the decrees allowing them did not adjudicate the rights of the parties. The items of those accounts remained subject to correction for all errors and not merely for errors of a kind similar to those which all courts have inherent power to correct after final decree. A construction of the 1938 act which would enlarge the effect of the earlier decrees would make of that act something more than a mere modification or withdrawal of statutory rights previously granted but creating no vested interest, as in Wilson v. Head, 184 Mass. 515, 518, 519, 69 N.E. 317, and Pittsley v. David, 298 Mass. 552, 554-557, 11 N.E.2d 461. Parties may have refrained from taking part in the earlier accountings in the knowledge that the decrees would not bind them, and that they had the right to correct errors when later accounts should be presented. Such parties cannot now be confronted with what would in substance be a legislative decree permanently depriving them of their right to be heard upon questions involving their vested property rights which have never in any real sense been litigated at all.

In Sparhawk v. Sparhawk, 116 Mass. 315, 320, it was held that the provision of St. 1874, c. 397, § 1, that ‘all divorces nisi heretofore decreed’ under St. 1870, c. 404, ‘shall be deemed and taken to be, and have the force and effect of, absolute divorces from the bonds of matrimony’ would attribute ‘to judicial decrees, rendered before its passage, a force and operation which they did not have when they were made,’ and would exceed the power of the Legislature under the Constitution. Conversely it was held with convincing logic in Denny v. Mattoon, 2 Allen, 361, 376-380, 79 Am.Dec. 784, that a statute having the effect of taking away the quality of finality from a judicial decree that was final when entered would violate art. 30 of the Declaration of Rights. To similar effect are Casieri's Case, 286 Mass. 50, 55, 56, 190 N.E. 118, and Ziccardi's Case, 287 Mass. 588, 192 N.E. 29. Pertinent also are Forster v. Forster, 129 Mass. 559, 561, 562;Dinan v. Swig, 223 Mass. 516, 520, 112 N.E. 91;Opinion of the Justices, 234 Mass. 612, 621, 127 N.E. 635;Cosmopolitan Trust Co. v. Mitchell, 242 Mass. 95, 116, 136 N.E. 403;Worcester County National Bank, Petitioner, 263 Mass. 444, 456-460, 162 N.E. 217;State of Pennsylvania v. Wheeling & Belmont Bridge Co., 18 How. 421, 431, 15 L.Ed. 435;United States v. Klein, 13 Wall. 128, 146-148, 20 L.Ed. 519, and Hodges v. Snyder, 261 U.S. 600, 603, 43 S.Ct. 435, 67 L.Ed. 819.

We need not consider whether the 1938 act would be open to any other objection on constitutional grounds if it were construed to foreclose inquiry into the items of accounts allowed before it took effect. For the reasons stated, that sentence of G.L.(Ter.Ed.) c. 206, § 24, as appearing in St. 1938, c. 154, § 1, which reads, ‘After final decree has been entered on any such account it shall not be impeached except for fraud or manifest error,’ must be construed to apply prospectively to decrees entered after the statute took effect and not to apply retrospectively to decrees entered before it took effect. See Hanscom v. Malden & Melrose Gas Light Co., 220 Mass. 1, 107 N.E. 426, Ann.Cas.1917A, 145;Pittsley v. David, 298 Mass. 552, 554, 11 N.E.2d 461;Ring v. Woburn, 311 Mass. 679, 682, 43 N.E.2d 8. The statute of 1938 therefore left the first six accounts still subject to reconsideration at a proper time and by a proper method.

We think that the hearing on the later accounts provided that time and method after as well as before the repeal of G.L.(Ter.Ed.) c. 206, § 19. While section 19 was in force, this court had held for reasons not wholly dependent upon the terms of that section that earlier accounts were open at the hearings upon later accounts without first vacating the decrees allowing the earlier accounts. Barrett v. Briry, 256 Mass. 45, 152 N.E. 79. In that case decisions were cited which antedated the origin of section 19 (Rev.Sts. c. 67, § 10) and wherein such inherent power as the court had apart from statute to reopen former accounts upon settling later accounts was exercised without first...