Tracy v. Bishop
| Decision Date | 16 September 1937 |
| Citation | 10 N.E.2d 94,298 Mass. 182 |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
| Parties | JAY TRACY, JR., administrator, v. AUDREA BISHOP & others. |
May 11, 1937.
Present: RUGG, C.
J., CROSBY, PIERCE DONAHUE, & QUA, JJ.
Executor and Administrator, Payments, Accounts. Probate Court, Findings by judge, Appeal.
An administrator properly was allowed credit in his account for an amount paid on real estate to protect the interests of the heirs at the request of one of the heirs who was of age and was guardian of two minor heirs and with the approval of the minors and without repudiation by them when they came of age.
Findings by a judge of probate on reported evidence disallowing certain items of credit in an administrator's accounts and refusing to charge him with loss through failure to sue upon a claim alleged to be due the estate were not plainly wrong.
On appeal from a decree on an account of an administrator, he could not urge his own errors in accounting which had not been called to the attention of the probate judge.
On appeal from a decree upon an account of an administrator, the record need not include an inventory and account filed by the same individual as special administrator.
PETITIONS, filed by an administrator in the Probate Court for the county of Suffolk for the allowance of his first, second, and third accounts.
The petitions were heard by Dillon, J. Both the petitioner and the respondents appealed from a decree thereon.
A. F. Welsh, for the petitioner.
D. J. Cohen, (E.
J. Flavin & I.
Cohen with him,) for the respondents.
This cause is here upon the respective appeals of the administrator of the estate of Charles S. Bishop, late of Boston, deceased and of the three children who are the heirs of said Bishop from a decree allowing the administrator's first, second and third accounts with certain modifications.
The trial judge reported his findings of material facts. The pertinent evidence is also reported. It is our duty to examine the evidence and to decide the case according to our own judgment, although findings of fact of the trial judge are not to be reversed unless plainly wrong. Rodrigues v Rodrigues, 286 Mass. 77 , 80.
One controversy arises out of the attempt of the administrator to credit himself with the total amount of $1,207.03 paid by him at different times in 1926 and 1927 "to protect the interest of the deceased" in certain land in Florida which the deceased in company with others had purchased in his lifetime for the purpose of resale. The "interest" of the deceased seems to have been a resulting trust in an undivided quarter, but there has been no dispute as to the existence of the interest, whatever may have been its origin. It could have been found that although these payments were not shown to be for debts of the deceased, it was necessary to make them if the Florida real estate was not to be lost or abandoned.
The judge found upon what we think was sufficient evidence that Audrea Bishop, who was the oldest of the three children now contesting the account, and who was the temporary guardian of her two younger brothers, had full knowledge of these payments when they were made, and that they were made with her consent and at her instance, both as an individual and as guardian. After the second child came of age, all three children signed an agreement "to hold . . . [their] interest in Florida property . . .; to make payments on the principle [sic], and interest on mortgage on said property as long as we feel financially able.
" Although in form this was an agreement among the children only, the judge justifiably found on oral evidence that "This document was given to the administrator for his protection in the matter of making payments on the Florida land." It could have been found that the minor children knew of and approved these payments at some time during the period covered by them. The youngest child became of age in 1929 and there is no suggestion of any repudiation of the payments by any of the children until their appearance was entered in these proceedings in 1934. See Barnaby v. Barnaby, 1 Pick. 221; Welch v. King, 279 Mass. 445 , 450.
For the purpose of this decision we assume that in general an administrator should not make payments out of personal property which are not...
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