Potter v. Mullaney

• Decision Date: 01 December 1938
• Citation: 17 N.E.2d 691,301 Mass. 497
• Parties: POTTER v. MULLANEY et al. SAME v. LIPSITT et al. SAME v. RIDDOCK et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

301 Mass. 497

17 N.E.2d 691

POTTER

v.MULLANEY et al.

SAME

v.LIPSITT et al.

SAME

v.RIDDOCK et al.

Supreme Judicial Court of Massachusetts, Bristol.

Dec. 1, 1938.

Proceedings by George H. Potter, administrator of the estate of Ellen Martin, deceased, against Beatrice H. Mullaney and others, against Joseph Lipsitt and another, and against John B. Riddock and another, for a determination of the validity of certain claims. From the decrees entered therein, allowing the claims, one of the heirs at law appeals.

Decree in each of first two cases reversed; decree in third case modified and affirmed as modified.Appeal from Probate Court, Bristol County; Mayhew R. Hitch, Judge.

S. Barnet and Philip Barnet, both of New Bedford, for respondent.

B. H. Mullaney, in pro. per.

DOLAN, Justice.

These are appeals claimed by one of the heirs at law of Ellen Martin, late of New Bedford, deceased, from three decrees entered in the Probate Court upon a petition in each case seeking to have the validity of certain claims of an attorney at law determined, anf for authority to pay such sums, if any, as the court should find to be due.

The petitions appear to be phrased in the language of section 2 of G.L. (Ter.Ed.) c. 197, which relates to the payment of debts, legacies and distributive shares. By the consideration of the appeals we do not decide that petitions to establish such claims as are here involved would lie under the provisions of that chapter. See French v. Bray, 263 Mass. 121, 160 N.E. 424;Old Colony Trust Co. v. Segal, 280 Mass. 212, 182 N.E. 578. We treat the petitions, however, in the same manner as the parties have treated them, that is, as if they were proceedings under G.L.(Ter.Ed.) c. 215, § 39, or section 45.

The evidence is not reported and the judge made no report of material facts found by him under G.L.(Ter.Ed.) c. 215, § 11, but in each case he made findings in the decree in which he specified the character of the claims which he decreed to be valid and authorized to be paid. Since these findings touched the issues raised by the petitions we think the contention of the appellant, that the judge was without power so to decree with relation to the kind of claims specified in the petitions and decrees, is open on the appeals. See Schuka v. Bagocius, Mass., 3 N.E.2d 215;Conley v. Fenelon, 266 Mass. 340, 342, 165 N.E. 382;Olsen v. Olsen, Mass, 2 N.E.2d 475.

In the decrees entered relating to the respective claims of the attorneys Mullaney and Lipsitt, the judge found that each had ‘rendered services in connection with the administration of * * * [the] estate [of the deceased] in the matter of the disallowance of the purported will of * * * [the deceased] and the appointment of an administrator,’ and also in the case of the claims of Mullaney that she had rendered services in securing an order restraining the transfer of property. In these cases he also found that the services were for the benefit of the estate and decreed that the claims were valid and authorized the administrator in each case to pay a lump sum in satisfaction thereof.

In the matter of the claims of the attorney Riddock the judge found that the former ‘rendered services in connection with the administration of said estate in the matter of the disallowance of the purported will of Ellen Martin, and in connection with securing a restraining order against transferring property, which services were for the benefit of said estate, and also rendered services to the temporary conservator of Ellen Martin,’ and ‘decreed that John B. Riddock has a valid claim against said estate for services in the matter of the disallowance of the will of Ellen Martin to the amount of $250. and for services in the matter of said restraining order, $25. and in the matter of services to the temporary conservator, $100. and expenses amounting to $13.45-total $388.45, and said administrator is authorized to pay the same.’

The appellant contends that the judge was without power to decree to be valid and authorize to be paid the several claims in each case, either as costs and expenses under G.L.(Ter.Ed.) c. 215, § 45, or as services rendered to the administrator, or in connection with the administration of the estate of the deceased under section 39 of that chapter. Beatrice H. Mullaney, the only claimant affected who appeared in the proceedings before us, contends that the claims involved were properly allowed under the provisions of section 39.

It is undisputed that the petitions were brought after final decree had been entered disallowing the instrument purporting to be the will of the deceased. In so far as the claims involved are for services rendered ‘in the matter of the disallowance of the purported will’ of the deceased, it is settled by what is...