Rowell v. Milliken

• Decision Date: 07 March 1929
• Citation: 266 Mass. 448
• Parties: WILBUR E. ROWELL, executor, v. MINNIE A. MILLIKEN.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

266 Mass. 448

WILBUR E. ROWELL, executor, v. MINNIE A. MILLIKEN.

Supreme Judicial Court of Massachusetts, Essex.

March 7, 1929

December 12, 1928.

Present: RUGG, C.

J., CROSBY CARROLL, WAIT, & SANDERSON, JJ.

Probate Court Accounts, Rehearing, Appeal. Executor and Administrator.

At the hearing in a probate court on second and third accounts of an executor, a respondent contended that the stock of a certain corporation was improperly entered in Schedule C of the first account at its inventoried value and retained by the executor and carried forward into

Schedule C of the second and the third accounts at the same value, and orally sought under G.L.c. 206, Section 19, to reopen the first account to show that the executor therein should have been charged with a loss on that stock because he had not sold it at the then market price. It appeared that there had been a hearing on the first account, that the question whether the executor should be charged on the grounds stated had then been heard, that the first account had been allowed, that an appeal of the respondent from its allowance had been dismissed for lack of prosecution, and that a petition in writing by the respondent to reopen the account on the same ground as orally stated at the hearing on the second and third accounts had been denied and no appeal had been taken therefrom. The respondent's counsel did not deny that the respondent at the hearing on the first account should have introduced full evidence nor that it also was obtainable then. The judge excluded the evidence and by his order decrees were entered allowing the

accounts. The respondent appealed from the decrees.

Held, that

(1) The evidence properly was excluded, the matter to which it related having been fully heard before the allowance of the first account;

(2) The decrees allowing the second and third accounts properly were entered.

PETITIONS, filed in the Probate Court for the county of Essex, respectively on March 3, 1927, and on May 11, 1928, for the allowance of the second and third accounts of Wilbur E. Rowell, executor of the will of James I. Milliken, late of Lawrence.

The petitions were opposed by Minnie A. Milliken, widow of the testator. They were heard in the Probate Court by Dow, J., a stenographer having been appointed in accordance with the provisions of G.L.c. 215, Section 18. In the cross-examination of the petitioner, the first witness called at the hearing, the respondent's counsel sought to introduce evidence to show that the petitioner wrongly retained shares of stock of the Everett Mills, inventoried by him at $193.50 per share and that, after a sale of fifty-two shares had shown a loss of $4,041.83, which he had so entered in his first account, he nevertheless carried forward in Schedule C of that account and through Schedules C of the second and third accounts, then being heard, the remaining six hundred fifty shares at their full inventoried values. The first account had been allowed after a hearing. The trial judge ruled in substance that the questions thus stated by counsel as being raised as the second and third accounts were settled when the first account was allowed after a hearing. Counsel for the respondent then orally asked, under G.L.c. 206 Section 19, to reopen the first account, presenting an offer of proof in answer to a question of the judge as to what error or mistake they wished to correct.

The offer thus presented was in substance that, during the period covered by the first account, there had been numerous sales of stock of Everett Mills at prices ranging from $175 to $190 per share and that sales in 1927 and 1928 were at about $10 per share and, as shown by a transcript of the testimony of the petitioner at the hearing on the first account, that he had realized that he held too much of the stock of the Everett Mills, but had given the court the impression that it was less readily marketable than was the case.

It appeared from records of the court then introduced in evidence that the first account covered a period from May 16, 1921, to and including December 31, 1925; that after a hearing it was allowed by Dow, J., on November 4, 1926; that the respondent appealed on November 24, 1926; that on March 24, 1927, her appeal was dismissed for failure to prosecute; that on March 3, 1927, she filed in writing a petition for the reopening of the first account because the executor "could at various times after May 16, 1921, have sold the said shares or a proper proportion of them at their fair market value, namely $193.50 per share, or a less amount which would have been far in excess of their present value; and that by reason of the negligent failure of said executor to sell a proper proportion of said shares at the market value thereof, the said estate and the legatees and beneficiaries thereof have suffered great loss and damage"; that the petition was heard by White, J., and on March 24, 1927, a decree was entered denying it, from which there was no appeal.

Addressing the court respecting the foregoing facts shown by the record after the judge had stated that they seemed clearly to show that "the question now raised has been passed upon," counsel for the respondent stated: ". . . there isn't any question but what the matter that is now raised has been before the court before . . . that the plaintiff, or objector, to the account, should have introduced full evidence we don't deny, and that it was obtainable then just as now we don't deny, but that it was not presented to the court stands out as a fact which cannot be disputed, and the evidence which was presented to you didn't show the whole picture and only a part of the situation was before you. You didn't know when you made the finding in this case what the facts were, -- what the real facts were. There has been a finding made as to the conduct of this executor and trustee in fact that has been based upon only half the story. The real condition of the market in respect to the Everett stock has never been presented to you . . . now there is another account before the court and it is an account in which the executor asks that all the matters therein be finally adjudicated . . . and it is shown in the accounts that he is carrying this Everett stock, which comprises a large part of the estate, at the inventory value. We come in now with evidence that has never been presented to the court, which no court can decide the matters involved in this estate fairly and justly without knowing, and we present that, -- offer it, -- on the most important matter that there is in the whole case, and upon a...