Young v. Tudor

• Court: Supreme Judicial Court of Massachusetts
• Writing for the Court: QUA
• Citation: Young v. Tudor, 323 Mass. 508, 83 N.E.2d 1 (Mass. 1948)
• Decision Date: 09 December 1948
• Parties: YOUNG et al. v. TUDOR et al.

323 Mass. 508

83 N.E.2d 1

YOUNG et al.

v.TUDOR et al.

Supreme Judicial Court of Massachusetts, Middlesex.

Dec. 9, 1948.

Report from Probate Court, Middlesex County; John C. Leggat, Judge.

Proceeding by B. Loring Young and others, trustees under the will of Benjamin Sewall, deceased, for allowance of accounts, opposed by Charlotte H. Tudor, and others. On reservation and report.

Decision in accordance with opinion.

Before QUA, C. J., and DOLAN, RONAN, WILKINS, and SPALDING, JJ.

P. B. Sargent, of Boston, for petitioners.

F. W. Grinnell, of Boston, guardian ad litem, pro se.

QUA, Chief Justice.

The judge of probate has reserved and reported for our consideration certain questions arising upon the eighth to twelfth accounts, inclusive, of the trustees under the will of Benjamin Sewall, late of Weston. These questions relate to the sufficiency of notice given by publication and mailing by registered mail to certain persons and to the appointment of a guardian ad litem.

The evidence is not reported. Consequently the only facts for our consideration are those found by the judge. The findings of a guardian ad litem in his report to the Probate Court, which is printed with the record, are not binding upon any persons not represented by him. To what extent the judge might accept them as admissions of the persons represented by the guardian ad litem need not now be decided. A guardian ad litem is a person appointed by the court ‘to appear and act’ in litigation in behalf of a ‘minor or person under disability, or not ascertained or not in being.’ G.L.(Ter.Ed.) c. 201, § 34. G.L.(Ter.Ed.) c. 206, § 24, as now appearing in St.1938, c. 154, § 1. He is not a trier of fact like a master, whose findings, after confirmation by the court, become the factual basis of the decree. The guardian's findings have no authoritative standing as establishing the facts in the case. The making of impartial authoritative findings would be inconsistent with the duty of the guardian to represent the parties whose interests he is appointed to protect. American Bonding Co. v. American Surety Co., 127 Va. 209, 218, 219, 103 S.E. 599. The subject matter of his findings must, at least as to parties not represented by the guardian ad litem, be proved by evidence and found by the judge as must other matters of fact pertinent to the issues.

The facts found by the judge, in so far as material to the questions reported, are these: A citation was issued upon the accounts directing that notice be given by deliveringor mailing a copy of the citation by registered mail to all persons interested, and that if service should be made by registered mail, unless it appeared that all persons interested had received actual notice, by publishing a copy once each week for three successive weeks in a designated newspaper. The publication was made as directed, and copies of the citation were mailed by registered mail ‘to all persons interested (issue of the testator) who had vested interests in the estate but notices were not mailed to nearly fifty issue having only contingent interests (many of whom are minors) nor were notices mailed to the heirs at law (unknown in name and number) of the testator's five brothers and sisters and his son-in-law all deceased) who by the terms of the will would take the principal in the event of failure of issue of the testator.’ ‘Following the return day, the attorney for the accountants filed a return of service certifying to publication and to mailing by registered mail to all persons having vested¹ interests and requested the appointment of a guardian ad litem to represent unborn and unascertained interests.’ Accordingly, a guardian ad litem was appointed to represent persons unborn and unascertained and minors with contingent interests. The judge also found that the accounts were just and true.²

The first question reported we interpret to be whether the court had full jurisdiction to proceed to a decree upon the notice given.

The statute governing the notice required upon the allowance of accounts in the Probate Court is G.L.(Ter.Ed.) c. 206, § 24, as now appearing in St.1938, c. 154, § 1. That statute provides that ‘such notice as the court may order shall be given to all persons interested,’ and that ‘If the interest of a person unborn, unascertained, or legally incompetent to act in his own behalf, is not represented except by the accountant, the court shall appoint a competent and disinterested person to represent his interest in the case.’

In our opinion, on this record, the accountants have failed to show notice sufficient to warrant the court in proceeding upon the accounts. The statute required notice to ‘all persons interested,’ without exception. The citation specified the manner of giving that notice as by delivery or by mailing by registered mail a copy to ‘all persons interested’ and by publication, unless all persons interested received actual notice. A return showing publication but showing mailing limited to persons having vested interests in insufficient on its face. The facts found are in accord with the return and do not better it. There is nothing in the statute or in the terms of the citation that limits the notice or the mailing to persons having vested interests. There is nothing in reason to justify such a limitation. Persons having contingent interests are persons interested in the trust and in the accounts (Neafsey v. Chincholo, 225 Mass. 12, 113 N.E. 651;Jordan v. Turnbull, 242 Mass. 317, 320, 136 N.E. 182;McKay v. Audubon Society Inc., 318 Mass. 482, 485, 62 N.E.2d 117), unless indeed such interests are so utterly unsubstantial as to amount to nothing more than ‘a film of mist.’ Copeland v. Wheelwright, 230 Mass. 131, 137, 119 N.E. 667, 669;Newburyport Society for Relief of Aged Women v. President and Fellows of Harvard College, 310 Mass. 438, 445, 38 N.E.2d 669. The interests of persons having contingent interests may be vastly greater than those of persons having vested interests, and may be readily assignable. Putnam v. Story, 132 Mass. 205;Butterfield v. Reed, 160 Mass. 361, 35 N.E. 1128. Contingent interests may be such that they can be reached and applied in payment of debts. Clarke v. Fay, 205 Mass. 228, 91 N.E. 328, 27 L.R.A.,N.S., 454. The contingencies upon which they depend may have become so nearly certain of fulfilment that such interests are practically equivalent to vested interests. That when the Legislature, in redrafting § 24, used the words ‘all persons interested’ it had in mind persons having contingent as well as those having vested interests appears from the very next sentence, where it is provided that if ‘the interest of a person unborn, unascertained, or legally incompetent to act in his own behalf, is not represented except by the accountant, the court shall appoint a competent and disinterested person to represent his interest in the case.’ A person unborn could hardly have other than a contingent interest. A person unascertained would be very likely to have such an interest. And there would be no consistency in making a mandatory provision for the protection of the contingent interests of persons unborn or unascertained if ascertained living persons having contingent interests were not even entitled to notice to the full extent called for by the statute and the citation. The word ‘unascertained’ in the sentence last quoted from the statute, relating to the appointment of a guardian ad litem, refers to unascertained persons. It does not refer to persons who may be well known to the accountant as interested in the estate, but the amount of whose interest is not known because it is contingent. There is no occasion to appoint a guardian ad litem to represent the interest of an ascertained and fully competent person merely because that interest is contingent. We are unable to perceive any sound ground on which the distinction between vested and contingent interests can be made the test of the right of a person interested to receive notice by mailing. This position finds support in such cases as we have seen from other jurisdictions. In re Stolzenbach's Estate, 346 Pa. 74, 78, 29 A.2d 6;Matter of Killan's Estate, 172 N.Y. 547, 550,65 N.E. 561,63 L.R.A. 95;Matter of Hardy, 216 N.Y. 132, 137, 138,110 N.E. 257;Appleby v. Tom, Tex.Civ.App.1942, 170 S.W.2d 519.

The duty imposed by the citation to mail copies ‘to all persons interested’ is, of course, as broad as the duty imposed by the statute to give ‘such notice as the court may order’ ‘to all persons interested,’ subject, however, to a reasonable construction of the citation itself as hereinafter explained. Porotto v. Fiduciary Trust Co., 321 Mass. 638, 642, 643, 75 N.E.2d 17. See Bell v. Swift, 322 Mass. 145, 76 N.E.2d 133. The forms of citations established under G.L.(Ter.Ed.) c. 215, § 30, have the force of law. Baker v. Blood, 128 Mass. 543, 545.

The argument that notice is required only to persons having vested interests rests principally upon Dexter v. Cotting, 149 Mass. 92, 21 N.E. 230, cited in Waitt v. Harvey, 312 Mass. 384, 391, 45 N.E.2d 1. In the Dexter case broad language was used, which, however, should be read in the light of its setting. In that case it was held that the words ‘all the persons beneficially interested’ appearing in Pub.Sts. c. 141, § 16,³ exempting a trustee from giving sureties on his bond when ‘all the persons beneficially interested’ of full age and legal capacity requested such exemption, and the words ‘all persons interested’ as used in Pub.Sts. c. 141, § 5, providing for the appointment of successor trustees ‘after notice to all persons interested,’ included only persons having vested interests. But under those statutes the only matters in issue were the selection of new trustees and the question whether they should give sureties on their bonds. Such matters might well be disposed of on notice to vested interests alone without substantial jeopardy to contingent interests....