O'Shea v. Barry

• Decision Date: 22 May 1925
• Citation: 147 N.E. 845,252 Mass. 510
• Parties: O'SHEA v. BARRY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

252 Mass. 510

147 N.E. 845

O'SHEA

v.BARRY.

Supreme Judicial Court of Massachusetts, Essex.

May 22, 1925.

Appeal from Probate Court, Essex County; A. P. White, Judge.

Petition by Mabel P. O'Shea, executrix of the will of William O'Shea, against John M. Barry, administrator. From a decree charging William O'Shea, as executor of will of Michael Hurley, with interest to date of decree, petitioner appeals. Decree modified, and, as modified, affirmed.R. L. Sisk, of Lynn, for appellant.

J. H. Casey, of Boston, J. M. Barry, of Lynn, and F. J. Muldoon, of Boston, for appellee.

SANDERSON, J.

This is an appeal by the petitioner, executrix of the will of William O'Shea, from a decree of the probate court entered February 2, 1925, in which William O'Shea, as executor of the will of Michael Hurley, is charged in Schedule A of his final account with the principal sum of $2,804.02, and interest thereon from May 10, 1913, to the date of the decree, amounting to $1,972.02. The only question to be determined is whether the court was justified in charging the accountant with this item of interest.

William O'Shea, at the time of his death, was executor of the will of Michael Hurley, who died in 1899. In 1902, O'Shea filed an account as such executor, and after hearings in the probate court, appeals were taken both by the accountant and residuary legatees to the Supreme Judicial Court. A master appointed by a single justice in that court filed his report on May 10, 1913, showing a balance of $2,804.02 due from O'Shea as executor of the will of Michael Hurley. This report was permitted by the parties to remain inactive until June 21, 1921, when an interlocutory decree confirming it was entered, from which an appeal was taken by the heirs of Michael Hurley. O'Shea died November 12, 1921, and his widow, Mabel P. O'Shea, was appointed executrix of his will, and became a party to these proceedings. A final decree was entered in the Supreme Judicial Court ordering that the decree of the probate court charging O'Shea as executor with $15,823.86 be modified by substituting therefor $2,804.02, with the further provision that:

‘All questions of interest, if any, are to bedetermined by said probate court.’

From this decree an appeal was taken by the same heirs, and after rescript the decree previously entered was affirmed with costs. Thereafter upon hearing in the probate court the accountant was charged with the controverted item of interest from the date of the filing of the master's report. The court ruled that by the provisions of G. L. c. 235, § 8, interest was thus to be added to the amount for which the master found the accountant chargeable. In the report of facts by the judge of probate it appears that no evidence was introduced tending to show whether or not O'Shea received any interest from the funds of the estate held by him as executor.

[1][2][3] An executor or administrator is not chargeable with interest on the money of the estate in his hands, unless he has received interest thereon or put it to some profitable use or unreasonably detained it. Stearns v. Brown, 1 Pick. 530;Bassett v. Fidelity & Deposit Co. of Maryland, 184 Mass. 210, 68 N. E. 205,100 Am. St. Rep. 552;McIntire v. Mower, 204 Mass. 233, 235, 90 N. E....