Untersee v. Untersee
| Decision Date | 07 February 1938 |
| Citation | 13 N.E.2d 29,299 Mass. 417 |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
| Parties | EMIL A. UNTERSEE, executor, v. MAXIMILIAN UNTERSEE & others. |
October 8, 1937.
Present: RUGG, C.
J., FIELD, DONAHUE LUMMUS, & QUA, JJ.
Executor and Administrator, Continuance of business, Payments, Accounts. Probate Court, Auditor, Appeal, Costs.
The report of an auditor, appointed by a probate court to hear an executor's account with a stipulation that his findings of fact were to be final, properly was included in the record on appeal from a decree upon the account, and had substantially the same standing as a like report in an action at law.
Neither a legatee to whom an architect by his will had given the good will of his business nor any other beneficiary under the will was in a position to object to the allowance in a first account of the executor of items of expense incurred by the executor in completing work left uncompleted by the architect irrespective of what might be determined in later accounts as to who was entitled to the avails of the work, where it appeared that the work was assumed by the executor with the cooperation of the legatee and the understanding and assent of all the other beneficiaries.
Costs and expenses can be allowed in the Probate Court under G. L. (Ter. Ed.) c 215, Section 45, only as an incident to a pending proceeding.
Although a petition in equity in a probate court and an account of an executor in large part were tried together, a decree awarding costs and expenses to one of the parties in both proceedings, entered two years after final decree in the equity proceeding and on the date of a decree on the account, was error, the proceedings being separate and the suit in equity no longer pending.
PETITION, filed in the Probate Court for the county of Norfolk on February 1 1932, for allowance of the first account of the executor of the will of Franz Joseph Untersee, late of Brookline; also a
"MOTION," by Maximilian Untersee for counsel fees and costs, filed on May 7, 1934.
Decrees were made following hearings by McCoole, J., from which the executor appealed.
J. H. Sherburne, (J.
B. Dolan with him,) for Emil A.
Untersee, executor.
R. B. Heavens, for Maximilian Untersee and others.
The first matter is here upon the appeal of Emil A. Untersee, executor of the will of Franz Joseph Untersee, from a decree of the Probate Court allowing his first account with amendments reducing the amounts of certain items of credit to him for payments contained in schedule B, striking out altogether other items in said schedule, and charging the executor with a correspondingly increased amount in schedule C.
The second matter is here upon the executor's appeal from a decree of the Probate Court allowing to Maximilian Untersee $4,000 for counsel fees and $286.73 "costs and expenses" upon his petition hereinafter described.
Franz Joseph Untersee died September 5, 1927. He had been an ecclesiastical architect. At the time of his death he was engaged upon ten different jobs for various religious institutions. The first clause of his will read as follows:
"To my sons Carl R. and Maximilian Untersee of said Brookline, I give the good will of my business, books on architecture, plans, drawings and tools used by me in my profession as an architect, but not my book accounts, which are to form part of the residue of my estate."
The remainder of the will does not appear in this record. The testator's sons, Carl and Maximilian, had been associated with the testator in his architectural work before his death and were acquainted with the jobs then unfinished. Carl and another son, Emil, the present accountant, were appointed executors. After a few months Carl died, and Emil, as surviving executor, continued the settlement of the estate. Carl and Emil undertook as executors to complete the ten jobs on the theory that the uncompleted engagements for services were assets of the estate. They employed Carl (himself an executor) and Maximilian to do the work at a salary of $75 a week. After Carl's death Maximilian continued with the work. The owners of the properties involved allowed the jobs to go on until all of them were completed, and the executors acquired therefrom for the estate "receipts and profits amounting to $8,528.01." Emil as surviving executor filed the account which is now before us February 1, 1932. The items to which the respondents object consist, in so far as they have been disallowed, of payments by the surviving executor for legal work, bookkeeping and accounting services, and executor's charges arising out of the completion of the testator's pending jobs. The contention of the respondents is that the executors had no right to undertake this work and therefore cannot be allowed for expenses incurred in carrying it on.
Shortly after the filing of the executor's account Maximilian filed in the Probate Court a petition in equity "for a determination of the value" of the legacy described in the first clause of the will hereinbefore quoted. Both the account and the petition in equity were referred to the same person as "auditor" whose findings were to be final. Before the filing of the auditor's report on the account a final decree was entered on the petition in equity declaring that the right to negotiate contracts for the architectural work upon the uncompleted jobs "was a part of the legacy to Maximilian and Carl," that the executors had no right to undertake this work, and that Maximilian and the estate of Carl were entitled to receive from Emil, the surviving executor, as part of the legacy the sum hereinbefore mentioned of $8,528.01 which the executor had realized from the doing of this work. The correctness of this decree is not before us. An attempt to have it revoked ended in an appeal to this court which was decided upon grounds not affecting the merits of the decree. Untersee v. Untersee, 293 Mass. 132 .
While the executor's account and the petition in equity were both pending Maximilian filed a "motion" or petition, afterwards amended, praying for an award to him of costs for counsel fees and expenses with respect to both proceedings. Upon this petition the court made the award hereinbefore mentioned, payable out of the estate.
1. We deal first with the executor's account.
The respondents in this proceeding contend that the auditor's report, although printed with the appeal, is not properly a part of the record and cannot be considered, on the grounds that "The parties did not agree that the findings of the auditor should be submitted to this court as facts or evidence nor did any decree make the auditor's report a part of the record," and that the "report does not contain all the facts before the trial justice." We do not agree with this. When the Legislature by statute, now G. L. (Ter. Ed.) c. 221, Section 57, authorized the appointment of auditors in proceedings on probate accounts we think it intended to give to their reports, in so far as might be consistent with the necessities of probate practice, a status similar to that of auditors' reports in common law actions. In Gallagher v. Phinney, 284 Mass. 255 , 257, it is said that an auditor's report under this statute "stands like an auditor's report at common law." It is now settled that in actions at law where the court has appointed an auditor with the order that his findings of fact shall be final the auditor becomes the primary fact finding tribunal. Sojka v. Dlugosz, 293 Mass. 419 , 422, and cases cited. His report is in effect a case stated and as such is of itself a part of the record. Merrimac Chemical Co. v. Moore, 279 Mass. 147 , 152. Raymond v. Davies, 293 Mass. 117 . Old Colony Railroad v. Wilder, 137 Mass. 536 , 537. Whether or not "case stated" as a technical term may with accuracy be used in probate practice, there would seem to be no reason why, with agreement of the parties interested, an auditor's findings of fact on a probate account may not be made final and no reason why, when so made, such findings should not have substantially the same effect as the basis of the decision that similar findings would have in an action at law. G. L. (Ter. Ed.) c. 231, Section 126, recognizes the possibility of a case stated in probate proceedings. See Section 144. See Rules
18, 20, 21 of the Probate Courts (1934). In none of the cases cited by the respondents, such as Davis v. Gay, 141 Mass. 531 and Gallagher v. Phinney, 284 Mass. 255 , 257, were the findings of the auditor final. McMillan v. Gloucester, 244 Mass. 150 , was a complaint for abatement of taxes. Findings of the commissioner were to be final, but that case was decided before Merrimac Chemical Co. v. Moore, and is distinguishable in...
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