Wilbur v. Hallett

• Decision Date: 30 March 1940
• Citation: 305 Mass. 554,26 N.E.2d 322
• Parties: WILBUR v. HALLETT et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

305 Mass. 554

26 N.E.2d 322

WILBUR

v.HALLETT et al.

Supreme Judicial Court of Massachusetts, Norfolk.

March 30, 1940.

Suit in equity by Charles Albert Wilbur against Herbert K. Hallett and others, executors of the estate of Clara M. Melvin, deceased, to recover a legacy. From a decree, the petitioner appeals.

Reversed.Appeal from Probate Court, Norfolk County; McCoole, Judge.

A. L. Taylor and F. J. Johnson, both of Boston, for appellant.

Ropes, Gray, Boyden & Perkins, of Bostion, for appellees.

DOLAN, Justice.

This is a suit in equity brought in the Probate Court (G.L.(Ter.Ed.) c. 197, § 19) wherein the petitioner seeks to recover a legacy of $1,000 bequeathed to him by the will of Clara M. Melvin, late of Brookline, deceased. Under the terms of the will (fifth codicil) the testatrix also devised to the petitioner certain real estate owned by her at the time of her death and located in ‘Woods Hole, Massachusetts, together with all furniture, furnishings and equipment of said place * * *’ as they existed at the time of her death.

The case was heard by the judge upon the pleadings, certain documentary evidence and an oral statement of agreed facts, a stenographer having been appointed to take the evidence.

In their answer the respondent surviving executors of the will of the deceased allege that the special administrator of the estate of the deceased, who had been appointed pending the outcome of a contest by the petitioner of probate of her will, had expended, by specific authority granted by the Probate Court upon a petition filed by him, $490.62, and also, without prior authorization, other sums, which were shown in his first and final account, allowed on May 21, 1935, for repairs, preservation and care of the Woods Hole real estate, all of which exceeded the petitioner's legacy. They further allege that the petitioner, although requested to pay to them the sums thus expended for the preservation of the real estate specifically divised to him, refused to do so, and that, having in their hands ‘the said legacy of $1,000 due and payable to * * * [the petitioner],’ they applied the legacy in payment of their claim against him; and that ‘such application of said sum appears in the executors' first and final account allowed by * * * [the Probate] Court on July 13, 1938.’ The present suit was begun by the petitioner on December 16, 1938.

It is agreed that the final account of the respondents was allowed on July 13, 1938, and that ‘Under Schedule B of said account is shown a payment to Charles A. Wilbur, Jr. [the petitioner] as a distribution of the said legacy of $1,000.’ Other material facts are substantially as follows: The special administrator was appointed upon the petition of the present petitioner and others, in which they prayed that a special administrator be appointed, and that he ‘be authorized to take charge of all the real estate of said deceased and to collect rents and make necessary repairs * * *.’ The judge entered a decree appointing a special administrator, and under its terms authority was conferred upon him to take charge of the real estate of the deceased as prayed for, since there was delay in granting letters testamentary. See G.L.(Ter.Ed.) c. 193, §§ 10, 11. Under section 11 it is provided that expenditures in connection with the care of real estate shall be a ‘charge thereon.’ On November 28, 1934, on petition of the special administrator, notice of which was accepted by the petitioner and others interested, the judge entered a decree, in which, after reciting that no one objected, he authorized the special administrator to make ‘the necessary repairs' and to pay the taxes upon the real estate involved. No question arises as to the taxes thus authorized to be paid. Since the testatrix died on May 31, 1934, the taxes on the real estate apparently constituted a debt of the deceased and not of the devisee. The necessary repairs referred to in this decree were made up of items which totalled $525, but on account of which the special administrator expended but $490.62. The special administrator made other payments for the care and upkeep of the real estate in question, without specific previous authority of the Probate Court, which, together with the sum just before referred to, amounted to $1,383.22 All the items making up this total sum were set forth in the special administrator's first and final account which was allowed on May 21, 1935. See Dewey v. Burke, 246 Mass. 435, 141 N.E. 117.

The will and codicils thereto of the deceased were allowed on April 22, 1935, about eleven months after her death. The petitioner sold the real estate involved ‘in 1935 to an outside party.’ The judge entered a decree in which he found that there was ‘a valid charge or debt due from...