Reynolds v. Remick

• Decision Date: 04 June 1951
• Citation: 99 N.E.2d 279,327 Mass. 465
• Parties: REYNOLDS v. REMICK et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 279

99 N.E.2d 279

327 Mass. 465

REYNOLDS v. REMICK et al.

Supreme Judicial Court of Massachusetts, Norfolk.

Argued Jan. 5, 1951.

Decided June 4, 1951.

F. M. Schlater, New York City, Daniel J. O'Connor, Lynn, for petitioner.

P. C. Reardon and L. L. Wadsworth, Jr., Boston, for defendants.

Before QUA, C. J., and LUMMUS, WILKINS, SPALDING and WILLIAMS, JJ.

QUA, Chief Justice.

This is a petition, filed in the Probate Court February 14, 1950, for revocation of a decree entered in that court April 14, 1941, allowing the first account of Alice M. Remick and others as trustees under the will of Alfred H. Remick, late of Quincy. The respondents are three of the trustees who filed the account and the executors of a fourth trustee, deceased since the account was allowed.

The petitioner describes herself as 'Natural Guardian and Mother and Next Friend of Nancy Reynolds.' Nancy Reynolds, child of the named petitioner, was born July 15, 1938, and was therefore under three years of age when the account was allowed. She had a contingent interest in the trust fund in the event of the death of her mother before distribution. The account was assented to by all beneficiaries entitled at the time of its allowance to receive income under the trust, including the present named petitioner, Edith R. Reynolds. No citation ever issued upon it. There was, of course, no service of any kind, not even by publication, upon the minor Nancy Reynolds. The accounting trustees knew that Nancy Reynolds was the daughter of Edith R. Reynolds, and that she had been born in 1938. Nancy was not a person unborn or unascertained. Before allowing the account the Probate Court appointed a guardian ad litem, who assented to the allowance of the account.

There is a preliminary question whether the guardian ad litem was appointed for minors or only for persons unborn or unascertained. The question arises from confusion in the wording of the appointment itself, due probably to failure to make proper cancellations from, and insertions in, the printed form. As they appear in the record the words read, 'Whereas * * * it appears that there may be persons unborn or unascertained who are or may become interested in said account;--who are or may become interested in said account are legally incompetent to act in their own behalf, and have no legal guardian other than the accountant; therefore John D. Smith of Quincy in the County of Norfolk is hereby appointed to act as guardian ad litem or next friend for such persons * * *.' We think the intent was to appoint the guardian ad litem for two general classes of persons, (1) 'persons unborn or unascertained' and (2) persons who 'are legally incompetent to act in their own behalf.' The same need for a guardian ad litem would exist in each class. If the intent had been to appoint only for persons unborn or unascertained, there would have been no occasion whatever for further describing those same persons as incompetent to act in their own behalf, and it would have been strange indeed to add that they had no legal guardian other than the accountant. If the words used disclose the intent with reasonable certainty, that intent ought not be defeated because of faulty arrangement or ungrammatical sentence structure. See Fickett v. Boston Firemen's Relief Fund, 220 Mass. 319, 320, 107 N.E. 957; Radio Corp. of America v. Raytheon Mfg. Co., 300 Mass. 113, 117, 14 N.E.2d 141; Frye v. School Committee of Leicester, 300 Mass. 537, 538, 16 N.E.2d 41; Lehan v. North Main Street Garage, Inc., 312 Mass. 547, 550, 45 N.E.2d 945, 144 A.L.R. 1100; Commissioner of Corporations & Taxation v. Board of Assessors of Boston, 324 Mass. 32, 36, 84 N.E.2d 531.

The principal question in the case is whether the decree allowing the account is binding upon the minor Nancy, when no notice whatever was given to her of the pendency of the proceeding for its allowance. This is substantially the same as the question which was left open in Young v. Tudor, 323 Mass. 508, 516, 83 N.E.2d 1. The respondents contend that since a guardian ad litem was appointed for minors, and he assented to the allowance of the account, no notice to any minor was necessary. They cite G.L. (Ter.Ed.) c. 215, § 47, which provides that 'notice required in any proceeding in a probate court may be dispensed with if all parties entitled thereto assent in writing to such proceeding or waive notice.' A subsidiary question therefore is whether the court had sufficient personal jurisdiction over Nancy to appoint for her a guardian ad litem who could assent.

It may be well to begin with the statute which at the time of the allowance of the account prescribed the notice to be given. That statute was G.L. (TerEd.) c. 206, § 24, as appearing in St.1938, c. 154, § 1. ¹ So far as here material, it read, 'Upon application for the allowance of an account filed in the probate court, such notice as the court may order shall be given to all persons interested. If the interest of a person unborn, unascertained, or legally incompetent to act in his own behalf, is not represented except by the accountant, the court shall appoint a competent and disinterested person to represent his interest in the case. * * * After final decree has been entered on any such account it shall not be impeached except for fraud or manifest error.' Obviously by its terms the statute required both notice 'to all persons interested' and the appointment of a guardian ad litem for persons legally incompetent to act in their own behalf. There is nothing in the statute suggesting that observance of one of these requirements will make unnecessary observance of the other. The form of the statute is mandatory as to both. Nancy was a person interested in the account, although her interest was a contingent one. Young v. Tudor, 323 Mass. 508, 83 N.E.2d 1. It inevitably follows that she was entitled to notice.

There is nothing unusual in the idea that a minor, like any other defendant or respondent, must be served with process before a judgment can be passed against him. It is the general rule that he must be so served. In Taylor v. Lovering, 171 Mass. 303, at pages 305-306, 50 N.E. 612, after first mentioning the chancery practice in England requiring service of process upon an infant before a guardian ad litem can be appointed, see Daniell's Chancery Practice, 8th ed., 110-111, the court said, 'As our statutes concerning the service of writs and subpoenas * * * contain no special provisions for service upon infants, or upon persons under guardianship or of unsound mind, the practice here, we think, has been to require the same service on them as upon other defendants. We think that this is the proper practice. Although service on an infant or on a person of unsound mind sometimes would seem to be useless, it often would be difficult to determine whether in fact it would be so or not, and it is a convenient practice to require service according to the statutes in every case, and not to appoint a guardian ad litem until this has been done.' See also Mc Kenna v. McArdle, 191 Mass. 96, 99, 77 N.E. 782. It must now be regarded as settled that the statute here involved required notice of proceedings for the allowance of accounts to be given to feeble minded persons, spend-thrifts, and insane persons before guardians ad litem could be appointed for such persons and before the accounts could be allowed. King v. Stowell, 211 Mass. 246, 252, 98 N.E. 91; Waitt v. Harvey, 312 Mass. 384, 397, 45 N.E.2d 1; Burnett v. Williams, 323 Mass. 517, 521, 83 N.E.2d 6. See Anagnostopoulos v. Anagnostopoulos, 307 Mass. 493, 494-495, 30 N.E.2d 410. Whatever differences may exist in the condition or status before the law of feeble minded persons, spendthrifts, and insane persons on one hand and that of minors on the other, there is nothing to justify us in drawing a distinction between these classes of legally incompetent persons in the matter of notice of the proceedings under the statute which here controlled, G.L. (Ter.Ed.) c. 206, § 24, as appearing in St.1938, c. 154, § 1. No such distinction was drawn in what was said in Taylor v. Lovering, 171 Mass. 303, 305-306, 50 N.E. 612, about the general practice in courts of the Commonwealth, and, more important, no such distinction was drawn in the statute itself, where all persons 'legally incompetent to act' in their own behalf were classified together, and where notice of the proceeding was required 'to all persons interested.' The overwhelming weight of authority in other jurisdictions holds that the appointment of a guardian ad litem for an infant does not do away with the necessity of service of process upon the infant according to law. ²

Our attention has been directed to the supposed folly of requiring ordinary service of process upon an infant in arms. Little is said in this connection about the minor of twenty who as a practical matter may be fully competent to profit from the service of process upon him. But, even as to the small infant we would say, in addition to what was said in Taylor v. Lovering, 171 Mass. 303, 306, 50 N.E. 612, previously quoted, that usual forms of service, instead of being useless, are likely to be effective, since small children are almost invariably in the immediate care of others who are concerned with their welfare and into whose hands the citation would in all probability fall. The other side of the picture is that if there were to be no service upon minors, it would be entirely possible and would occasionally occur that minors would be deprived of their proper shares in estates and trusts without any knowledge by the minors themselves or by their natural protectors that any proceedings were pending. However faithful most guardians ad litem may be, it seems to us unnecessary and unwise and not in accordance with the statute to permit such a situation to exist. See Allen v. Shields, 72 N.C. 504, 506-507; Campbell v. Campbell, 63 Ill. 462; Shaw...