Tomlinson v. Flanagan

• Decision Date: 07 June 1934
• Citation: 287 Mass. 38,190 N.E. 785
• Parties: TOMLINSON v. FLANAGAN et al. (two cases).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

287 Mass. 38

190 N.E. 785

TOMLINSON

v.FLANAGAN et al. (two cases).

Supreme Judicial Court of Massachusetts, Essex.

June 7, 1934.

Appeal from Probate Court, Essex County; Dow, Judge.

Proceeding by Walter C. Tomlinson, administrator de bonis non with the will annexed of the estates not already administered of Charles J. Keefe and Margaret C. Keefe, deceased, for determination of the amount due Michael A. Flanagan and another for attorneys' fees. From decrees allowing the petitions, the attorneys appeal.

Affirmed.

B. E. Smith and W. C. Tomlinson, both of Lawrence, for petitioners.

J. J. Fox, Jr., of Lawrence, for respondents.

PIERCE, Justice.

These cases are two appeals from decrees of the Probate Court, filed November 9, 1933, allowing the petition of Walter C. Tomlinson, administrator with the will annexed of the estate not already administered of Charles J. Keefe, late of Lawrence in the county of Essex, deceased, and the petition of Walter C. Tomlinson, administrator with the will annexed of the estate not already administered of Margaret C. Keefe, late of Lawrence in the county of Essex, deceased, praying that the court, in accordance with the provision of G. L. (Ter. Ed.) c. 215, § 39, determine the amount due Michael A. Flanagan and John J. Fox, Jr., for attorneys' fees in connection with the administration of said estates. Each appeal presents the same issues of law for the consideration of this court.

The material facts found by the judge of probate, at the request of the appellants, are in substance as follows: Charles J. Keefe died March 12, 1927, testate, leaving his property to his wife, Margaret C. Keefe, who was appointed executrix. The appellants Michael A. Flanagan and John J. Fox, Jr., were employed by her to probate the will, prepare and file the inventory and give notice of her appointment. She was appointed executrix May 4, 1927. She died November 13, 1928, testate. On April 26, 1929, Raymond V. Keefe was appointed administrator with the will annexed of the estate not already administered of Charles J. Keefe and, on January 30, 1929, was appointed administrator with the will annexed of said Margaret C. Keefe. He employed the appellants to procure his appointment in each case, and they did the necessary work in the Probate Court to this end. After his appointment said Raymond V. Keefe told Mr. Flanagan that he wished to settle the estates as fast as he could. Nothing was done to close the estates until March, 1932, when a petition was filed asking the court to order the administrator in each estate to file an inventory and an account. On April 7, 1932, an inventory was filed in each estate. On the same date an account in each case was filed which was subsequently amended to meet objections made. On January 31, 1933, after a hearing lasting several days, the accounts were allowed in a modified form, various credits and claims of the accountant being disapproved. At the hearing there were in issue credits claimed by the accountant and failure to account for moneys received, which, it was alleged by the objectors, were moneys the accountant was accountable for. In said hearings the appellants represented the accountant for the purpose of contesting said objections and of sustaining the accounts. On June 7, 1933, Raymond v. Keefe resigned as administrator with the will annexed of the estates of Charles J. Keefe and of Margaret C. Keefe and his resignations were accepted June 26, 1933. On the same day the petitioner was appointed in his place. There is in the possession of the appellants about $1,700 belonging to the estate of Charles J. Keefe, which was received by them through a foreclosure of a mortgage belonging to the estate. Before his petitions for resignation were filed Raymond V. Keefe demanded said money from the appellants and received from them a check dated June 30, 1933, for $47.90, with a statement of account for legal services rendered in connection with each estate, and their own receipted bills for such services, amounting to $1,817.60, against a credit of $1,865.50.

The appellants contend (1) that the court did not have jurisdiction to enter the decrees upon the allegations of the petitions and the facts found and reported by the court; (2) that, if the court had jurisdiction to enter the decrees, it adopted erroneous principles, or rules of law, in computing the amount allowable properly to the appellants, in that it allowed them for such services only as were ‘beneficial to the estates' (a ruling, in effect, that the appellants were not entitled to be allowed on the present petitions for all services rendered by them at the instance of said Raymond V. Keefe), and in that the court considered the so-called conduct of the appellants in determining the value of their services to said estates, that is, their services which were ‘beneficial to the estates'; and (3) that the court acted improperly and unwarrantedly in proceeding to hear and determine the instant petitions in the absence of the respondents, who had no opportunity to give evidence or to be heard in argument after the appellants had brought properly to the attention of counsel and the court that one of the appellants was actively engaged at the time of the hearing on the instant petitions at a continued hearing before a master of the Superior Court.

These petitions are brought under G. L. (Ter. Ed.) c. 215, § 39, which reads: ‘Probate courts may ascertain and determine the amount due any person for services as appraiser, for premiums of surety companies for acting as surety upon the official bonds of administrators, executors, trustees, guardians, conservators or receivers, or for services rendered by any person in connection with the administration of the estate of a deceased person, or with the administration of any trust, guardianship, conservatorship or receivership; and payment of said amount when ascertained and determined to be due may be enforced summarily by said court upon motion of the person to whom the amount is due in the same manner as a like payment under a decree in equity may be enforced, and execution may also be issued therefor against the executor, administrator, trustee, guardian, conservator or receiver personally as upon a judgment at law.’

In support of their contention that the court did not have jurisdiction to enter the decrees establishing the...