Waitt v. Harvey

• Decision Date: 23 November 1942
• Citation: 312 Mass. 384,45 N.E.2d 1
• Parties: WAITT v. HARVEY et al. (two cases).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

312 Mass. 384

45 N.E.2d 1

WAITT

v.HARVEY et al. (two cases).

Supreme Judicial Court of Massachusetts, Middlesex.

Nov. 23, 1942.

Proceedings by Henry F. Waitt against George Stanley Harvey and another, guardians of plaintiff as a spendthrift and trustees under the will of Emma L. Waitt, deceased, for revocation of decrees appointing respondents as trustees and allowing their accounts. From a decree dismissing the petition for revocation of trustees' appointment, petitioner appeals, and from a decree revoking the decree of dismissal and allowing the petition and a decree revoking the decrees allowing the accounts, respondents appeal.

Decree allowing petition for revocation of appointment reversed, decree dismissing such petition affirmed, and decree revoking decrees allowing accounts affirmed, if amendment be allowed in probate court within prescribed time after rescript, and otherwise, petition for revocation of decrees allowing accounts dismissed.Appeals from Probate Court, Middlesex County; J. C. Leggat, Judge.

Before FIELD, C. J., and QUA, DOLAN, and RONAN, JJ.

S. R. Wrightington and G. W. Abele, both of Boston, for Henry F. waitt.

G. Newhall, of Lynn, and J. J. Geogan, of Whitman, for Harvey and another.

DOLAN, Justice.

These two petitions were brought in the Probate Court by the petitioner who is under the guardianship of George Stanley Harvey and Walter I. Badger as a spendthrift. Mr. Harvey and Mr. Badger are respondents in the present cases in their further capacity as trustees under the will of Emma L. Waitt (hereinafter referred to as the testatrix), the grandmother of the petitioner.

I. The First Case.

By the petition in this case the petitioner seeks the revocation of a decree entered in the Probate Court on March 1, 1927, appointing the respondents trustees under the will of the testatrix, without giving sureties on their official bonds, to serve with Albert H. Waitt (the father of the petitioner) who was then the surviving trustee under the will. The sole grounds upon which the petition is based are allegations that at the time the appointment in question was made the petitioner had a vested interest in the trust estate, and that he received no notice of the petition for the appointment of the respondents as trustees.

After hearing, the judge entered a decree on June 10, 1941, dismissing the petition for revocation and the petitioner appealed seasonably. On July 29, 1941, the judge, so far as appears of his own motion, entered the following decree: ‘It not having appeared clearly to the court, at the time of the trial of the within petition, that there was a minor child interested in the petition for appointment of trustees, but it now appearing, and all parties agree, that there was a minor child and that no one assented to the petition for appointment of said trustees for said minor child, the decree dismissing the within petition is hereby revoked as of the tenth day of June, 1941, and the within petition is hereby allowed.’ The respondents appealed.

The action of the judge in entering the latter decree was without authority. Final decree having been entered on the merits, he was not authorized to revoke that decree for supposed error by him of determination either of facts or of law. The sole remedy of the petitioner if aggrieved by the entry of the final decree was by appeal, which was duly filed by him. Untersee v. Untersee, 299 Mass. 425, 426, 13 N.E.2d 34. There is nothing to show that the original final decree entered by the judge did not represent his actual decision. On the contrary, the terms of the subsequent decree entered by him disclose that he took that action because it had not clearly appeared to him at the time of the trial that there was a minor child interested in the petition for appointment of the trustees. That fact, however, is set forth in the agreement for abridgment of the record for appeal (below referred to) as evidence that was before the judge at the time of the trial. The case is not one coming within the rule that there ‘is an inherent and necessary power in a court of justice * * * on its own motion to correct errors and remedy omissions in its records in order that they shall speak the truth,’ Webb v. Cohen, 280 Mass. 292, 293, 182 N.E. 337;Chagnon v. Chagnon, 300 Mass. 309, 311, 312, 15 N.E.2d 231, and cases cited, but is one where the original decree truly represented the decision of the judge. Contrary to the contention of the petitioner, we are of opinion that the respondents were persons aggrieved by the entry of the second decree in question, and entitled to appeal therefrom. The right of a trustee to appeal from a decree revoking his appointment would seem to be no less than in the case of a decree removing him from his office as trustee. See Sparhawk v. Sparhawk, 114 Mass. 356;Wilson v. Wilson, 145 Mass. 490, 14 N.E. 521,1 Am.St.Rep. 477;Parker v. Mackintosh, 253 Mass. 547, 149 N.E. 413. See also Ripley v. Brown, 218 Mass. 33, 105 N.E. 637;Ellis v. Hunt, 228 Mass. 39, 46, 116 N.E. 956. The second decree entered revoking the original final decree dismissing the petition for revocation and instead allowing it must be reversed. Compare Peterson v. Hopson, 306 Mass. 597, 29 N.E.2d 140, 132 A.L.R. 1.

We proceed to the consideration of the petitioner's appeal from the final decree entered by the judge dismissing the petition for revocation of the decree appointing the respondents as trustees. In a stipulation for abridgment of the record the parties have agreed that, except for certain facts set forth in the stipulation and such of the records of the Probate Court as are made a part of the record on the appeal, ‘no evidence of any sort was submitted to the Court.’ This stipulation was approved by the judge. The material agreed facts and those disclosed by the documentary evidence may be summarized as follows: The testatrix, Emma L. Waitt, died on May 2, 1913, leaving as her only child Albert H. Waitt and as her only grandchild the petitioner, the son of Albert. The testatrix' son Albert and one Sherburne were named as trustees under her will and duly qualified as such on February 25, 1914. The testatrix, after providing in her will for certain specific and pecuniary legacies to her son and others, devised and bequeathed the residue of her estate to her son, Albert, and Sherburne in trust, to pay the net income to Albert during his life, and upon his death to divide the income equally among his children with provision for issue in case of the death of any of them. The will further provides that when each of her grandchildren ‘shall reach the age of twenty-five years he or she shall receive one-quarter of the principal of the trust estate held for his or her benefit and as to the fund so paid and transferred, the trust shall cease and thereafter he or she shall receive the income only of the remaining part of his or her share of the trust fund.’ The will also provides that when each of her grandchildren shall reach the age of thirty-five years he or she shall receive a further one-quarter of the trust fund held for his or her benefit, and that after the death of the last survivor of her grandchildren living at her death the whole trust fund ‘shall be distributed among my surviving grandchildren, if any, and the issue then living of my deceased grandchildren in the same proportion in which they would then be entitled to the income thereof under the foregoing provisions, and the trust shall terminate.’ In default of grandchildren or issue of grandchildren living at the time for final distribution the testatrix provided that one-third of the trust estate should be paid to the wife of her son if living, and that the trust estate then remaining should be paid one-half to the persons who ‘would have been’ the heirs of her deceased husband if he had died at the time for final distribution and one-half to the persons who ‘would have been’ her heirs ascertained as of that time.

The petitioner was born June 26, 1901. On June 28, 1926, Charles W. Kokerda was appointed his guardian as a spendthrift. This appointment was in force on March 1, 1927, when the respondents were appointed trustees under the will of the testatrix in place of Sherburne, who had deceased. No citation appears to have been issued upon their petition for appointment, but it was assented to in writing by the surviving trustee and life beneficiary, Albert H. Waitt, and by Kokerda as guardian of the petitioner. The decree entered on March 1, 1927, appointing the respondents as trustees without sureties, recited, in substance, that objections had been made but that the parties ‘now’ agree to the entry of the decree. When the respondents were appointed as trustees the petitioner had one daughter, Virginia, who was born on September 1, 1924. She is still living. Kokerda was removed from his office as guardian of the petitioner on May 21, 1928, and on June 18, 1928, the respondents,Messrs. Harvey and Badger, were appointed in his place as guardians of the petitioner as a spendthrift. When the respondents' appointments as trustees were made, Virginia was not under guardianship nor at any time prior to February 25, 1941, when one MacDonald was appointed guardian of her estate. The former life beneficiary and trustee under the will, Albert H. Waitt, the petitioner's father, died November 11, 1940. The petition under consideration was filed May 5, 1941. The guardian of Virginia appeared at the hearing of the petition and stated that ‘he would in behalf of his ward ratify and confirm the appointment of the trustees, but the Court ruled that it was too late.’ The contention of the petitioner that the appointment of MacDonald as guardian of Virginia is invalid is based on the fact that although the record of his appointment discloses that Virginia was above the age of fourteen years when he was appointed, she did not nominate him to be her guardian and was not cited in for that purpose as...