Turner v. Morson

• Decision Date: 12 September 1944
• Citation: 57 N.E.2d 18,316 Mass. 678
• Parties: TURNER et al. v. MORSON.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

316 Mass. 678

57 N.E.2d 18

TURNER et al.

v.MORSON.

Supreme Judicial Court of Massachusetts, Middlesex.

Sept. 12, 1944.

Proceeding in the matter of the estate of Adelaide Turner, deceased, wherein Everett P. Turner and another, executors, filed accounts. From decrees allowing some of such accounts, James H. Morson, administrator with will annexed of the estate of Herbert B. Turner, a residuary legatee and devisee under the will of Adelaide Turner, deceased, appeals.

Modified and, as modified, affirmed.Appeal and Report from Probate Court, Middlesex County; Poland, judge.

Before FIELD, C. J., and LUMMUS, QUA, DOLAN, and WILKINS, JJ.

P. A. Hendrick, of Boston, for petitioner.

H. F. R. Dolan and J. Saklad, both of Boston, for respondent.

LUMMUS, Justice.

This is an appeal by James H. Morson, administrator with the will annexed of the estate of Herbert B. Turner, one of the residuary legatees and devisees under the will of his mother, Adelaide Turner, late of Arlington, from decrees allowing, after the disallowance of many items, the first twelve accounts of Everett P. Turner and Howard C. Turner, the executors of her will. The testatrix died on August 27, 1931, survived by four children, Herbert B. Turner, Marguerite Morra, and the two who were named as executors. Both before and after the death of the testatrix, Herbert lived in Spain and Marguerite in Italy. But both were in Arlington from April until October in 1931, and Herbert was there again in the summer of 1933. Herbert died on October 27, 1937.

The first eight accounts covered the period from the death of the testatrix to the end of 1938. The controversy over them was heard by an auditor, who filed a report. The last four accounts brought the accounting up to May 31, 1942. The judge heard all twelve accounts upon the auditor's report and ‘much’ evidence, ‘some being a repetition of that heard by the auditor.’ The judge, on the same day on which the claim of appeal was filed, made a ‘report of material facts,’ in which he said, ‘Except as stated herein the court finds the facts to be the facts stated by the auditor whose report is made a part hereof.’ The judge discussed the charging of the accountants for use and occupation of a house by Everett P. Turner, and came to the conclusion, contrary to that of the auditor, that the accountants should not be charged therefor. In no other respect was the auditor's report affected. The report concluded as follows: ‘As to the ninth to twelfth accounts inclusive, not referred to the auditor, the court finds that, except as to the items disallowed, the expenditures charged in Schedule B were made by the accountants, were reasonably incurred and were properly paid.’

There is nothing in the record to show that the ‘report of material facts' was required by the appellant under G.L.(Ter.Ed.) c. 215, § 11 (see c. 214, § 23), or was other than voluntary. The question arises, whether the report is to be deemed a complete statement of all the material facts upon which the judge based his decrees, just like a compulsory report under the statute (Sidlow v. Gosselin, 310 Mass. 395, 397, 38 N.E.2d 665;Hinckley v. Barnstable, 311 Mass. 600, 602, 42 N.E.2d 581;Matter of Loeb, 315 Mass. 191, 195, 52 N.E.2d 37), or merely a report of part of the facts in partial explanation of the decrees, without precluding the ordinary assumption that the decrees imported a finding of all facts, not expressly negatived, necessary to support them. Birnbaum v. Pamoukis, 301 Mass. 559, 17 N.E.2d 885;Wilkins v. Berkeley Realty Corp., 311 Mass. 148, 151, 40 N.E.2d 263;Potter v. Great American Indemnity Co., 316 Mass. 155, 55 N.E.2d 198;Watkins v. Briggs, 314 Mass. 282, 284, 50 N.E.2d 64. See also Povey v. Colonial Beacon Oil Co., 294 Mass. 86, 90, 200 N.E. 891;Stern v. Lieberman, 307 Mass. 77, 81, 82, 29 N.E.2d 839;Town of Lakeville v. Cambridge, 307 Mass. 433, 437, 30 N.E.2d 266;Munson v. Bay State Dredging & Contracting Co., 314 Mass. 485, 489, 493, 50 N.E.2d 633; Collins v. Commonwealth, 315 Mass. 167, 170, 51 N.E.2d 973;Matter of Loeb, 315 Mass. 191, 195, 196, 52 N.E.2d 37. The report is entitled ‘report of material facts,’ and we think it was intended to be as complete and definitive as though made under the statute. Thaxter v. Traiser, 305 Mass. 341, 25 N.E.2d 722;Druker v. Druker, 308 Mass. 299, 31 N.E.2d 524;Quigley v. Quigley, 310 Mass. 415, 38 N.E.2d 624;Plumer v. Luce, 310 Mass. 789, 39 N.E.2d 961.

There being no report of the evidence, the facts reported by the judge, except those appearing to be mere inferences from subsidiary facts stated (Charlestown Five Cents Savings Bank v. Kalemian, 299 Mass. 599, 13 N.E.2d 404;Gar Wood Industries, Inc., v. Colonial Homes, Inc., 305 Mass. 41, 45, 24 N.E.2d 767, 126 A.L.R. 591;Distasio v. Surrette Storage Battery Co., 316 Mass. 133, 135, 54 N.E.2d 928),must be taken as true, unless inconsistent with other facts found or with the pleadings. Charlestown Five Cents Savings Bank v. Kalemian, 299 Mass. 599, 13 N.E.2d 404;Wiley v. Fuller, 310 Mass. 597, 599, 39 N.E.2d 418;Quigley v. Quigley, 310 Mass. 415, 416, 38 N.E.2d 624;Colby v. Callahan, 311 Mass. 727, 42 N.E.2d 801. The question is whether the facts found support the decrees. Wiley v. Fuller, 310 Mass. 597, 599, 39 N.E.2d 418;Thompson v. Thompson, 312 Mass. 245, 246, 44 N.E.2d 651;Matter of Loeb, 315 Mass. 191, 195, 52 N.E.2d 37. The decrees must stand in the absence of error of law or fact. Coe v. Coe, 313 Mass. 232, 234, 46 N.E.2d 1017.

The testatrix, with her husband who died in 1907, lived in Arlington at 239 Pleasant Street, the much travelled main road from Arlington to Belmont. She continued to live there until her death in 1931. Both she and her husband took great pride in the maintenance at great expense of their gardens and grounds as a ‘show place.’ After 1907 she did not improve the house or make more than the most necessary repairs, but she kept up the gardens and grounds and employed three men largely for that purpose. The property has a frontage of five hundred sixty-three feet on Pleasant Street, and an area of one hundred two thousand two hundred sixty-seven square feet. A rocky ledge sixty feet deep covers the back of the property, reducing the usable part to a strip one hundred feet deep along the street. Even in that strip the surface soil is very shallow, and there are many outcroppings of the underlying ledge. No house could be built there without blasting for the cellar and for drains and service connections. The property is situated in an excellent neighborhood principally of large single family dwellings. Zoning regulations require single family dwellings set back twenty-five feet from the street on a lot at least sixty feet wide. Across the street is a smaller vacant lot of less than ten thousand square feet, bought before 1907 to afford a view of Spy Pond from the larger lot on which the buildings are located. Together they constituted the homestead estate of the testatrix.

On the large lot already described is a large old fashioned wooden house with large piazzas and twelve high studded rooms, built about 1850 in the style of that period. The floors were of soft pine, and the lighting fixtures were designed for the use of both gas and electricity. The bathrooms and the kitchen and pantries were old fashioned. The design of the house precluded successful remodeling. There is a large stable that had been made over into a garage for automobiles to the extent of cementing part of the floor. There are sleeping quarters upstairs, unused during the period of these accounts, for a coachman or chauffeur, and in them is a very old and inadequate bath. There is a large unattractive greenhouse reached through the kitchen, but its heating plant was out of order long before the death of the testatrix.

When the testatrix died the house was assessed for $8,000, the stable for $3,500, the greenhouse for $1,000, and the large lot for $15,500, a total of $28,000. The inventory value was $27,000, made up as follows: the house was valued at $10,000, the stable (called garage) at $3,000, the greenhouse at $1,000, and the large lot at $13,000. The smaller lot across the street was assessed for $2,100, and inventoried at $1,000.

Apart from certain household furniture and personal effects divided among her children, the testatrix disposed of her estate as follows: She gave to various persons legacies aggregating $8,000. She divided the residue of her personal property among her four children. She devised all her real estate to her executors ‘in trust to sell and dispose of the same (with power to postpone such sale and disposition as to any or all of the said real estate so long as they may think proper) and to pay over and transfer the proceeds thereof to my children living at my death.’ She provided that: ‘My executors may postpone the distribution of such part of my personal estate as they may consider necessary for paying the taxes and other expenses of keeping up my real estate pending a sale or other disposition thereof and may apply the same or the proceeds thereof or the proceeds of any such real estate to such taxes and expenses of upkeep.’

After paying the debts, which were small, and the legacies, and a distribution in money of $2,500 each to the four children, the executors had left at the end of 1931, according to their first account, only household effects valued at $7,204, and cash and securities valued at $7,286.26, besides the real estate. The household effects, valued at $7,204, were divided amicably among the four children, and the amount was written off as a distribution on December 28, 1933. Later, distributions amounting approximately to $1,100 to each of the children were made in money. It seems obvious that the testatrix must have had a much greater income than the size of her estate would indicate, and there are signs in the record that both the testatrix and her husband established trust funds, the...