Welch v. Flory

• Citation: 200 N.E. 900,294 Mass. 138
• Parties: WELCH v. FLORY.
• Decision Date: 01 April 1936
• Court: United States State Supreme Judicial Court of Massachusetts

294 Mass. 138

200 N.E. 900

WELCH

v.FLORY.

Supreme Judicial Court of Massachusetts, Middlesex.

April 1, 1936.

Proceedings in the matter of the estate of Agnes Welch, deceased, wherein Ernest Flory was appointed administrator and James Welch filed a petition for the revocation of the decree of distribution. From an adverse decree, the petitioner appeals.

Reversed, with directions.

Appeal from Probate Court, Middlesex County; Beane, Judge.

N. H. Kolodny, of Boston, for Welch.

A. B. Carey, of Boston, for Flory.

RUGG, Chief Justice.

This case involves a decree of distribution of the estate of Agnes Welch, who died intestate in Lowell in 1929. The respondent, the husband of a niece of the intestate, was appointed upon his own petition as administrator of the estate of the intestate in September, 1929; in that petition he stated that she left no husband and as her only heirs at law and next of kin James Welch, hereafter called the petitioner, described as her brother, and other persons described as nephews, nieces, grandnephews and grandnieces; the residence of the petitioner was stated to be Boston, Massachusetts. The first account of the respondent as administrator was allowed, showing a considerable balance entirely in cash. The respondent then filed a petition for distribution of such balance, alleging that the persons entitled thereto were named nephews, nieces, grandnephews and grandnieces, and making no mention of the petitioner. By decree of October 17, 1930, and upon warrant dated November 6, 1930, distribution of such balance was ordered in stated sums among the kindred named in the petition for distribution; the petitioner was not included in that decree or in the warrant. Report of payment of these sums was rendered to the probate court by the respondent and allowed by decree of February 27, 1931. In March, 1932, the petitioner filed a petition for revocation of the decree of distribution of October 17, 1930. That petition at first was dismissed but later a decree was entered of this tenor: ‘That said decree of October 17, A.D. 1930, be reaffirmed except so far as it finds that the said twenty-seven distributees therein named are the persons entitled to the balance of said estate; and it is decreed that said petitioner is entitled to one-fourth of said balance. But it appearing that all of said balance having been distributed by said administrator in good faith under authority and direction of said decree and order of October 17, A.D. 1930, this decree shall not require the administrator to take further action nor impose upon him any liability, but it shall take effect only to correct the error of said former decree and order and to establish the rights of the petitioner to his distributive share of said estate of said Agnes Welch as against the twenty-seven distributees to whom payment has been made and to give to said petitioner and to the administrator such rights as against said distributees as arise from the correction of the error of the decree of October 17, A. D. 1930.’ The petitioner appealed from that decree. The evidence is not reported. The trial judge at the request of the petitioner made report of the material facts found by him. In substance they are as follows: Shortly before the death of the intestate the respondent was appointed conservator of her estate. At that time and at the time of his appointment as administrator he was informed by his wife that she had an uncle, meaning James Welch, the petitioner. He was then about seventy-two years old and was living at 115 Holton street, Brighton, where he had been living for about fifteen years past. During that time he voted and paid taxes in Boston. For the purpose of notifying him of his sister's death in order that he might attend her funeral, the respondent made inquiry of two or three of the next of kin living in Lynn and was informed by some of them that a man named Comeau living in Lynn would probably know about the petitioner, James Welch. He asked them to see Comeau and make inquiry as to the whereabouts of the petitioner, and afterwards the wife of the respondent informed him that one of them had telephoned her saying that they had seen Comeau and that Comeau had told them that he did not know where the petitioner was. The respondent later went to the City Hall at Malden but could find no record of James Welch, and he also wrote to two of the next of kin in Nova Scotia but was unable to get any information from them regarding James Welch. The respondent did not make any examination of the city records in Boston. Comeau, as a matter of fact, had called upon the petitioner at various times and did know where he lived, but the respondent never personally saw Comeau or communicated with him directly. The respondent testified that he believed the petitioner had died without issue, although he was not so informed by anyone who had actual knowledge of his death. The trial judge found that the petitioner was entitled to one-fourth of the estate of the intestate amounting to $3,713.35, and that the respondent as administrator in bringing his petition for distribution and in making distribution under order of the court acted honestly and in good faith, but that by a more diligent search he might have located James Welch or have ascertained that he was still living.

The respondent has not appealed from the decree. There was a manifest mistake in the original decree of distribution, which upon the facts now disclosed ought to be corrected. The decree in form and substance conforms to established practice, where the administrator is without fault and has performed his duty and no further circumstances are disclosed. Harris v. Starkey, 176 Mass. 445, 57 N.E. 698,79 Am.St.Rep. 322;Loring v. Steineman, 1 Metc. 204;Pierce v. Prescott, 128 Mass. 140;Knowles v. Perkins, 274 Mass. 27, 33, 174 N.E. 221; G.L.(Ter.Ed.) c. 206, § 22.

The petitioner contends that upon the facts recited in the findings the respondent ‘was guilty of negligence in connection with the making of the original order of distribution, such as should deprive him of the right to rely upon it for his protection, and should require the court to make a new decree as if the former decree had not been entered.’ Cleaveland v. Draper, 194 Mass. 118, 122, 123, 80...