Quincy Trust Co. v. Taylor

• Citation: 57 N.E.2d 573,317 Mass. 195
• Parties: QUINCY TRUST CO. v. TAYLOR (two cases).
• Decision Date: 26 October 1944
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

317 Mass. 195

57 N.E.2d 573

QUINCY TRUST CO.

v.TAYLOR (two cases).

Supreme Judicial Court of Massachusetts, Norfolk.

Oct. 26, 1944.

Proceedings by Quincy Trust Company against Jane W. Taylor, executrix of the will of her husband, Thomas Milton Taylor, deceased, for the removal of the executrix. From an order of removal, executrix appeals.

Affirmed.Appeal from Probate Court, Norfolk County; Dowd, Judge.

Before FIELD, C. J., and LUMMUS, QUA, DOLAN, and WILKINS, JJ.

R. F. Barrett, of Boston, and John D. Smith, of Quincy, for petitioner.

H. J. Booras, of Boston, and A. P. Senopoulos, for respondent.

LUMMUS, Justice.

On June 10, 1931, Jane W. Taylor was appointed executrix of the will of her husband, Thomas Milton Taylor. The will gave one twentieth of the estate to a niece, and the residue to Jane W. Taylor. There was no creditor other than the Quincy Trust Company which held four mortgage notes aggregating $17,000. On June 4, 1943, the Quincy Trust Company filed a petition for the removal of the executrix on the ground, among others that she was ‘evidently unsuitable for the discharge of said trust.’

On December 7, 1943, after a hearing at which the evidence was reported under G.L.(Ter.Ed.) c. 215, §§ 12, 18, the judge (1) denied a motion of the executrix to strike out the appearance of the Quincy Trust Company on the ground that it was no longer a creditor, and (2) removed the executrix from her office. She appealed to this court.

The testator owned and operated an amusement park in Quincy. He left about $7,000 in personalty, and $35,000 in realty. From the value of the latter apparently should be deducted the amount of the mortgage debt, $17,000. After his death the executrix, without license from the Probate Court, continued to operate the park, and lived on the proceeds. After she was appointed and gave bond without sureties, she did nothing toward executing the will. She kept no accounts. When in 1938 the Quincy Trust Company threatened foreclosure, she conveyed, without consideration except possibly money lent and services rendered to her personally, all the personal property of the estate to one Spaulding, who lived on the premises with her and helped her operate the park.

General Laws (Ter.Ed.) c. 195, § 11, empowers a Probate Court to remove an executor or administrator for a number of reasons, one of which is that he is ‘unsuitable’ for the trust. Until R.L.1902 c. 139, § 11, the statutory words were ‘evidently unsuitable.’ St. 1783, c. 24, § 19; Pub.Sts. 1882 c. 132, § 14. But the word ‘evidently’ added nothing to the word ‘unsuitable’ (Gray v. Parke, 155 Mass. 433, 29 N.E. 641), and has now been eliminated from the statute.

The statutory word ‘unsuitable’ gives wide discretion to a probate judge. Past maladministration of a comparable trust, bad character, misconduct, neglect of duty, or physical or mental incapacity, warrants a finding that an executor or administrator is unsuitable. Such a finding may also be based upon the existence of an interest in conflict with his duty, or a mental attitude toward his duty or toward some person interested in the estate that creates reasonable doubt whether the executor or administrator will act honorably, intelligently, efficiently, promptly, fairly and dispassionately in his trust. It may also be based upon any other ground for believing that his continuance in office will be likely to render the execution of the will or the administration of the estate difficult, inefficient or unduly protracted. Actual dereliction in duty need not be shown.

The utter neglect of her duty by the executrix in this case warranted the finding that she was unsuitable, and we see no reason to disturb that finding.

In Spaulding v. Quincy Trust Co., 313 Mass. 752, 49 N.E.2d 251, it was held in substance that because of its acts during and after the foreclosure of one of its mortgages, the Quincy Trust Company, prior to the filing of the present petition, had ceased to have any right to payment of the mortgage notes upon which it relies as giving it standing as a creditor to maintain the present petition. Spaulding was entitled to any surplus after foreclosure under an assignment from Jane W. Taylor and the niece, who as devisees of the real estate were individually entitled apart from that assignment to any surplus after foreclosure. In the present petition, also, an individual right of Jane W. Taylor is involved, namely, her right to continue to hold an official position representing the estate. But with that right Spaulding as assignee had no concern. As assignee he and Jane W. Taylor were in privity so far as the thing assigned was concerned. But now that Jane W. Taylor seeks in a controversy foreign to the assignment to bind the Quincy Trust Company by the judgment in favor of her assignee in the earlier action, a doubtful question is raised. Taylor v. Barker, 70 Utah, 534, 262 P. 266, 55 A.L.R. 1032.Eastman Marble Co. v. Vermont Marble Co., 236 Mass. 138, 148, 151, 128 N.E. 177;Pineville Steam Laundry v. Phillips, 254 Ky. 391, 71 S.W.2d 980. Yet if the same facts should be found upon the present petition that were found in Spaulding v. Quincy Trust Co., 313 Mass. 752, 49 N.E.2d 251, the result would doubtless be controlled by that decision, as a precedent if not as an adjudication. Bergson v. H. P. Hood & Sons, Inc., 300 Mass. 340, 345, 15 N.E.2d 196, 116 A.L.R., 951.

We see no need to decide upon this record whether the Quincy Trust Company was a creditor at the time when the present petition was filed. Even if it was not, no error is shown in the decree for removal. The denial of the motion to strike out the appearance of the Quincy Trust Company was of no practical consequence.

Ordinarily courts properly remain inactive unless and until judicial action is required by some party in accordance with recognized practice. But courts have a wide inherent power to do justice and to adopt procedure to that end. Fanciullo v. B. G. & S. Theatre Corp., 297 Mass. 44, 51, 8 N.E.2d 174.Boyajian v. Hart, 312 Mass. 264, 266, 44 N.E.2d 964...