Phelan v. McCabe

• Decision Date: 09 February 1962
• Citation: 343 Mass. 585,179 N.E.2d 887
• Parties: Shirley A. PHELAN, public administratrix, v. Edward J. McCABE et al., administrators.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 887

179 N.E.2d 887

343 Mass. 585

Shirley A. PHELAN, public administratrix, v. Edward J. McCABE et al., administrators.

Supreme Judicial Court of Massachusetts, Essex.

Argued Dec. 5, 1961.

Decided Feb. 9, 1962.

William B. Welch, Salem, for the accountant.

Edward J. McCabe, Worcester, administrator, pro se.

Before WILKINS, C. J., and SPALDING, WILLIAMS, WHITTEMORE, and SPIEGEL, JJ.

WHITTEMORE, Justice.

Edward J. McCabe, one of the two administrators of the estate of Charlotte M. Dickinson, has appealed from a degree of the Probate Court for Essex County allowing, with modifications, the account of Shirley A. Phelan, public administratrix of the estate. Mrs. Phelan has also appealed from the decree. There is a report of material facts. The evidence is before us.

1. The public administratrix contends that Mr. McCabe's appeal must be dismissed because not joined in by his coadministrator.

Our decisions leave no doubt of the right of one administrator to appeal where it appears of record that the coadministrator opposes the appeal. In French v. Peters, 177 Mass. 568, 573, 59 N.E. 449, 450, this court said, 'The appeal of one administrator and the attempt of the other to have the appeal dismissed was in effect a severance in pleading * * * and so allowable under the doctrine stated, unless, as in Lyon v. Allison, [1 Watts, Pa., 161] it is apparent that it is better for the estate to have the decree stand. But in the present case the decree is against the estate, while in Lyon v. Allison the decree freed the estate from all liability. Besides this the present decree orders both of the coadministrators by name to pay the plaintiff * * *; thus imposing upon the appellant * * * personally a liability to be proceeded against for contempt, if he does not comply * * *.'

In Paul v. Costello, 177 Mass. 580, 59 N.E. 451, exception was taken to the ruling in the Superior Court that it had no jurisdiction of an appeal from the Court of Insolvency by one of two assignees in insolvency. Holmes, C. J., noted that French v. Peters implied that severance 'may be accomplished with less formality than by the ancient proceeding * * *.' He observed that '[i]f we were to apply the rules against an excepting party in all their strictness we should be obliged to overrule the exceptions on * * * [the] ground' that the refusal of the other assignee to appeal did not sufficiently appear of record. The opinion assumed, however, that the ruling 'went on the broad ground that one assignee could not appeal under any circumstances' and sustained the exceptions without prejudice, saying that '[i]f the dissent * * * has not been sufficiently established, it may be that the Superior Court will allow the appellant time to establish it.' Barnes v. Barnes, 291 Mass. 383, 388, 196 N.E. 917, 919, in a dictum indicates that a severance must be effected 'by some action approved by the court.'

There is no doubt also of the rule, recognized in French v. Peters, supra, that one of several coparties may appeal if he has a several interest. Barnes v. Barnes, 291 Mass. 383, 388, 196 N.E. 917. Mr. McCabe urges that this rule is applicable, notwithstanding the joint interest of the administrators, Zwick v. Goldberg, 304 Mass. 66, 70, 22 N.E.2d 661. We pass the issue whether a several interest could exist, notwithstanding such protection as is afforded by a final decree from which no appeal is taken, and stand on a broader base. It is established that 'in some matters, as in the collection and payment of debts, and the disposition of personal property, one executor [or administrator] may act, but his acts are deemed to be the acts of all.' Hannum v. Day, 105 Mass. 33, 35. Talbot v. Bush, 251 Mass. 27, 29, 146 N.E. 223. See Newhall, Settlement of Estates (4th ed.) § 60. In the Talbot case it was held that one special administrator may, as a person interested in the estate, complain under G.L. c. 215, § 44, against a person for fraudulently receiving, concealing and conveying personal property of the decedent. We are disposed to extend the rule stated in French v. Peters. Omission of one of two coadministrators to claim the appeal tends by itself to show that that one opposes the appeal. The only alternative is that he approves but that for some undisclosed reason his name was omitted. In that alternative we think the appeal by one of the coadministrators is to be deemed the act of both for purposes of the appeal in this court. If on remand, for any reason, as in respect of costs or allowances, the opposition of one of the coadministrators to the appeal should become in some way relevant, nothing in this rule will prevent the fact being shown. We rule that the appeal taken by Mr. McCabe is in the interest of the estate and is, therefore, properly here. G.L. c. 215, § 9.

2. The judge reduced the 'fee for public administratrix and legal services' from $15,000 to $6,000. Mrs. Phelan asserts error in the reduction; Mr. McCabe contends it is error not to have made a further reduction.

The judge found that Mrs. Phelan as public administratrix expended 800 hours in the performance of services for the estate. He found also the nature of the services rendered. Inter alia, he found that for a considerable time there were 'no known heirs or next of kin * * * [and she] received many calls and letters from persons claiming relationship * * *; these she checked and discussed at various conferences with the office of the Attorney General.' The personal property in the estate, as received by the public administratrix, according to the inventory amounted to $282,002.20. There was real estate which required attention. Two attorneys gave expert opinions in...