Sullivan v. Sullivan

• Decision Date: 10 January 1957
• Citation: 335 Mass. 268,139 N.E.2d 510
• Parties: Gilbert P. SULLIVAN, Administrator, v. Helen M. SULLIVAN et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 510

139 N.E.2d 510

335 Mass. 268

Gilbert P. SULLIVAN, Administrator, v. Helen M. SULLIVAN et al.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Nov. 8, 1956.

Decided Jan. 10, 1957.

Charles C. Craig, Boston, for respondents.

No argument nor brief for petitioner.

Before WILKINS, C. J., and RONAN, COUNIHAN, WHITTEMORE, and CUTTER, JJ.

CUTTER, Justice.

Thomas Sullivan died on March 7, 1930, leaving a widow, two daughters, the appellants Helen Sullivan and Mary Connelly, and two sons, Richard and Gilbert. Gilbert Sullivan, a member of the bar since 1928, was appointed administrator on April 18, 1930. In 1931, he filed an inventory but did not present until 1953 his first and final account for the period beginning April 18, 1930, and ending May 8, 1931. The two appellants objected to the account, which was referred to an auditor whose findings of fact were to be final. Changes in the account reflecting the conclusions of the auditor (that the administrator should be charged with some relatively small balances due to the several next of kin) were made. The account, as thus restated, was allowed. The appellants appeal ¹ from the decree allowing the restated account and from a further decree of the Probate Court awarding to the appellants $500 from the assets of the estate for costs and expenses in connection with the hearing on the account.

The case is here on the auditor's report, in effect a 'case stated.' United States Fidelity & Guaranty Co. v. English Construction Co., 303 Mass. 105, 108, 20 N.E.2d 939; New England Gas & Electric Association v. Ocean Accident & Guarantee Corp., Ltd., 330 Mass. 640, 644-645, 116 N.E.2d 671. The conclusions of fact of the auditor and of the probate judge by inference from the auditor's subsidiary findings, are open to review and revision in this court as matter of fact. The facts hereafter stated are based on the auditor's findings.

At his death Thomas Sullivan had a total estate of about $45,000 consisting of cash and bank books of $14,871.89, collectible mortgages of $9,400 and interests (in dispute as to extent) in one other mortgage and three parcels of real estate. The cash and most bank accounts, as well as some bank and mortgage interest, were collected in 1930-1931, debts and taxes were paid and, after a distribution of $7,000 to Richard Sullivan, one of the next of kin, there should have been a cash balance of $8,510.35 on December 31, 1931. Thereafter the administration of the estate dragged, with mortgages being collected from time to time, in whole or in part, through 1937, when one foreclosed property was conveyed at a figure of $7,000 to the appellant Mary Connelly as a part distribution on account of her share of the estate. The estate was inactive until 1945, when property in Hull was sold, and thereafter again inactive until 1952, when property at 198 Westville Street, Dorchester, was conveyed to the appellant Helen Sullivan in part payment of her distributive share. According to the statement by the auditor of the cash receipts and disbursements of the estate from year to year, there should have been year-end cash balances ranging from $16,486.35 on December 31, 1933, to $23,441.35 on December 31, 1937, and $26,341.35 on December 31, 1945. Where these balances were kept by the administrator does not appear from the record. No such balances were in the estate's bank accounts.

At the time of Thomas Sullivan's death in 1930, his wife was living apart from him and he was living with his children, Mary Connelly (then unmarried), Helen, and Gilbert, the administrator, in a house at 92-94 Codman Hill Avenue. The other son Richard does not appear from the record. No widow joined the three children in the Codman Hill Avenue house in 1932 and lived there until her death ² in 1946. Mrs. Connelly moved away at the time of her marriage in 1937 but Helen Sullivan still lives in the house with her brother and his wife. Gilbert was on close and friendly terms with his sisters at least until his own marriage in 1950. Although in 1937 Mrs. Connelly had a vigorous discussion with the administrator which led to the $7,000 partial distribution to her, this seems to have caused no major estrangement.

Against this background, the various issues presented on appeal can be considered.

1. In 1927 one Driscoll, at the intestate's direction, conveyed the Codman Hill Avenue property, without consideration paid by the grantee, to the intestate's son Gilbert, now the administrator. On the same day a $6,000 mortgage (subject to a first mortgage) was given by Gilbert to his father, the intestate, together with a note. The first mortgage and the $6,000 mortgage were replaced in 1929 respectively by a new first mortgage and a new $6,000 mortgage from Gilbert to the intestate.

When the intestate died, the administrator included this $6,000 mortgage in his inventory at $1,900, and in December, 1933, executed a still unrecorded discharge of the mortgage. Although the appellants claim the mortgage should have been included at its face value, the restated account has omitted all reference to the mortgage. The auditor ruled that the interests of the parties in the property are not a matter to be determined in these accounting proceedings and, accordingly, has made no finding as to the interests of the heirs and the widow in the property.

If the administrator had in fact been indebted to the estate, the debt would have been discharged by the appointment and the administrator would have been treated as having had the benefit of the amount of the debt from that date. Bassett v. Fidelity & Deposit Co., 184 Mass. 210, 212-213, 68 N.E. 205; Argus v. Kokkorou, 308 Mass. 315, 318-320, 32 N.E.2d 211. Here, however, the auditor in effect has found (and his subsidiary findings warrant that conclusion) that there was no debt to the intestate, and that the administrator held as 'straw' only, that is, in effect upon a resulting trust for the intestate. See Collins v. Curtin, 325 Mass. 123, 125, 89 N.E.2d 211. This resulting trust still continues so far as this record shows.

We cannot adopt the view of the auditor that this matter must be dealt with in a wholly separate equity proceeding. The mortgage note from Gilbert to the intestate was designed to protect the interest of the intestate in the real estate. The unrecorded discharge of the mortgage in 1933 removed one obstacle to Gilbert's dealing with the property as though no resulting trust existed. This note, as a protective precaution, was sufficiently an asset of the estate, even if not representing a real debt, to serve as a basis for requiring Gilbert to account for the intestate's interest in the real estate securing it. Gilbert cannot be permitted simultaneously to contend that the amount of the note is not to be included in the probate account as a collected debt and, at the same time, fail to recognize the resulting trust in real estate which the note protected. In connection with this proceeding, as a concomitant of recognition of nonliability to account as administrator for the amount of the note, he must account for the property held upon resulting trust.

The issues have been partly tried in a proceeding 'to be considered to be for all purposes in equity', Cook v. Howe, 280 Mass. 325, 329, 182 N.E. 581, 582, in which all necessary parties to a petition for an accounting under the resulting trust are already before the court. The parties should not be put to unnecessary expense in retrying these issues in another proceeding if, upon this appeal, we can provide in some reasonable manner for an accounting for all the assets of the estate. There is not enough in the present record to enable us to state the account with respect to the real estate held upon resulting trust and, in any event, an accounting for the real estate is not appropriately an integral part of this probate account. See G.L. (Ter.Ed.) c. 206, § 6; Hodgkinson v. Hodgkinson, 281 Mass. 463, 466, 183 N.E. 708. However, in view of the close relationship of the normal probate accounting to the accounting under the resulting trust, Gilbert Sullivan must now be required to file promptly in the Probate Court (either on a special order of notice in this proceeding or upon a new petition) an account as trustee under the resulting trust. When such an account is prepared, it can be combined for hearing with the further proceedings on the probate account, thereby facilitating recognition (in the accounting under the resulting trust) of the relevant issues of fact ³ which have been disposed of in the accounting here reviewed. Action to this end will be taken, in such manner consistent with this opinion as the probate judge may determine. No correction need be made in the restated probate account with respect to the Codman Hill Avenue note.

The action thus directed is taken to avoid unnecessary litigation of issues partly dealt with, as well as possible circuity of action, in a manner consistent with the result in Cook v. Howe, 280 Mass. 325, 328-331, 182 N.E. 581. That unusual case, in many respects, is very close on its facts to the present one. There, although apparently with the consent of the parties, in connection with an executor's probate accounting, it was directed that there be an accounting, qua executor, for the proceeds of real estate, which the executor had held under resulting trust for his testatrix during the latter's life. The real estate had been sold after the testatrix's death. A considerable point was made in Cook v. Howe of the fact that only the proceeds, personal property, need be dealt with in the proceeding. Chief Justice Rugg, 280 Mass. at page 328, 182 N.E. at page 582, points out that, with exceptions not here pertinent, an executor (or an administrator) 'has nothing to do with real estate' and that, therefore, 'if the real estate had not been sold by the accountant as holder of the legal title, it would have no proper place in...