Williams v. Howard
| Decision Date | 18 June 1953 |
| Citation | 330 Mass. 323,112 N.E.2d 247 |
| Parties | WILLIAMS v. HOWARD et al. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
A. Van Allen Thomason, Boston, for petitioner.
Arthur M. Beale, Boston, for respondents.
Before QUA, C. J., and LUMMUS, WILKINS, WILLIAMS and COUNIHAN, JJ.
Mary K. Cobb of Barnstable died testate on May 28, 1948. Her will contained many specific and pecuniary legacies and a devise of all her real estate. The residue was given to Mary Louisa Mihm and Charlotte Coombe Howell. Harold W. Williams, a lawyer, was named as executor, and was appointed on August 10, 1948. The inventory, filed on January 27, 1949, showed $57,099.16 in personalty, the bulk of which was in bank deposits, stocks, and bonds, and only $5,011.25 in household furniture, jewelry, and silverware. The real estate was unencumbered, and was valued at $14,000. By a decree dated April 28, 1950, the Probate Court, in view of the fact that the assets were insufficient to pay the legacies in full, determined which of the legacies were to be paid in full and which must abate. From that decree there was no appeal. Under a decree of the Probate Court, from which there was no appeal, the executor settled for $5,000 a claim for services rendered to the testatrix.
Both the first account and the second and final account of the executor were allowed on October 1, 1951. Certain legatees appealed on October 17, 1951. On September 24 and 25, 1952, the Probate Court refused to vacate the allowance of the accounts, on petition as well as on motion, and those legatees appealed. So far as those legatees relied on a motion, the refusal to vacate the decrees allowing the accounts was right. Those legatees had been fully heard by the Probate Court, and no accident or mistake was shown. Hyde Park Savings Bank v. Davankoskas, 298 Mass. 421, 423-424, 11 N.E.2d 3. So far as those legatees relied on a petition in the nature of a bill of review, Theberge v. Howe, 314 Mass. 22, 25, 49 N.E.2d 457, the petition was properly dismissed because it attacked decree from which an appeal had been taken and which were no longer open to revision by the Probate Court. Nelson v. Bailey, 303 Mass. 522, 526, 22 N.E.2d 116; Commissioner of Insurance v. Broad Street Mutual Casualty Ins. Co., 306 Mass. 362, 365, 28 N.E.2d 222.
The substantial questions in the case arise upon the appeals from the decrees allowing the accounts. There is no finding of material facts, but there is a report of the evidence. The decrees import a finding of all facts, open upon the evidence, needed to support the decrees, and such findings must stand unless plainly wrong. Trade Mutual Liability Ins. Co. v. Peters, 291 Mass. 79, 84, 195 N.E. 900; Berry v. Kyes, 304 Mass. 56, 57-58, 22 N.E.2d 622; Buckingham v. Alden, 315 Mass. 383, 385, 53 N.E.2d 101; Ryder v. Garden Estates, Inc., 329 Mass. 10, 105 N.E.2d 854.
The appellants contend that there was negligent delay in proving the will. We have merely the facts that the testatrix died on May 28, 1948, that the will was filed for probate on June 8, 1948, and that the will was proved and the executor appointed on August 10, 1948. There is no evidence of any improper delay, and no evidence of any harm to the appellants resulting from delay.
The appellants contend that the executor should have searched for assets before, he was appointed. They admit, however, that he could not have obtained possession of the assets until twenty days after his appointment. We are unable to see that he had any duty to act before he was appointed.
It appears from the accounts that in selling the stocks there was a net loss of $5,515.03 from the inventory value. The inventory had been filed on January 25, 1949. The stocks were all sold about July 1, 1949. It appears that the executor mistakenly thought that he had to transfer the stocks from the name of the testatrix into his own name before he could sell them, and that such transfer caused a delay. The executor testified that he did not learn what the assets of the estate were until just before the inventory was filed, although ever since his appointment on August 10, 1948, he had been trying to learn. There was no...
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Olsson v. Waite
...the October 17 decree was pending December 1, and the motion to vacate might have been denied on that ground. William v. Howard, 330 Mass. 323, 324-325, 112 N.E.2d 247 (1953). But the judge said that Olsson should dismiss his appeal, and Olsson stated in open court that he would do so and l......
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...363; King v. Grace, 293 Mass. 244, 251, 200 N.E. 346; Richardson v. Wolcott, 323 Mass. 693, 695, 83 N.E.2d 883; Williams v. Howard, 330 Mass. 323, 326, 112 N.E.2d 247; Vaughan v. Smith, 335 Mass. 418, 420-421, 140 N.E.2d 195. Only after the required hearing could there be a record on which ......
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