322 Mass. 145 | Mass. | 1947
This is an appeal by the executor of the will of Bertha L. Swift from a decree entered in the Probate Court revoking a decree allowing his first and final account as such executor. He will be referred to hereinafter as the accountant.
The evidence is not reported but the judge made a report of the material facts found by him at the request of the accountant, which may be summed up as follows: The petitioner is a daughter of the testatrix and a legatee under her
General Laws (Ter. Ed.) c. 206, § 24, as appearing in St. 1938, c. 154, § 1, provides as follows: “Upon application for the allowance of an account filed in the probate court, such notice as the court may order shall be given to all persons interested. 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. The person so appointed shall make oath to perform his duties faithfully and impartially, and shall be entitled to such reasonable compensation as the court shall allow. After final decree has been entered on any such account it shall not be impeached except for fraud or manifest error.” It is settled that the protection afforded an accountant thereunder fails unless the provisions of the statute have been complied with. Porotto v. Fiduciary Trust Co. 321 Mass. 638, 642-643, and cases cited. See Hellier v. Loring, 242 Mass. 251, 252. In the present case, since no citation was taken out on the account and the petitioner had no notice of the filing of the account or of the application for the allowance thereof and hearing thereon, the Probate Court, while having jurisdiction of the subject matter of the accounting, was nevertheless without authority to hear and enter decree thereon, and the decree entered was subject to direct attack, as here, but not to collateral attack. Clarke v. Andover, 207 Mass. 91, 98, and cases cited. Jones v. Jones, 223 Mass. 540. Mitchell v. Mitchell, 312 Mass. 154, 163. Waitt v. Harvey, 312 Mass. 384, 390. Zalis v. Ksypka, 315 Mass. 479, 481-482.
The- accountant, however, contends that the petitioner as
Contrary to the contention of the accountant the allowance of the account in question showing the payment of the legacy of the petitioner would be a bar to a petition in equity by her for payment of her legacy under G. L. (Ter. Ed.) c. 197, § 19, because in that proceeding the decree allowing the account could not be attacked collaterally for irregularity in the proceedings attending its allowance, that is, lack of authority on the part of the court in a proceeding of which it had jurisdiction in the true sense. Clarke v. Andover, 207 Mass. 91, 98, and cases cited. Wilbur v. Hallett, 305 Mass. 554, 557-558. Waitt v. Harvey, 312 Mass. 384, 390, and cases cited. It may be added that a petition for payment of a legacy under G. L. (Ter. Ed.) c. 197, § 19, is not the exclusive remedy of a legatee whose legacy has not been paid, since upon a probate accounting the judge in his discretion can give relief in proper case by ordering payment of the legacy under G. L. (Ter. Ed.) c. 206, § 4. Fay v. Fay, 299 Mass. 608, 612. Wilbur v. Hallett, 305 Mass. 554, 557, 558. Hinckley v. Barnstable, 311 Mass.
Since the decree allowing the account in question was revoked rightly for failure to comply with the requirements of the governing statute as to notice, it is unnecessary to deal at length with the sufficiency, as a ground for revocation of the decree, of the fact that the legacy shown as paid to the petitioner in the account as allowed had not been paid. As to that subject it is sufficient to say that it is settled that it is for payments and not appropriations for payment that an accountant may rightfully demand allowance. Grigaliunos v. Frost, 270 Mass. 455, 458.
Decree affirmed.
Minot v. Amory, 2 Cush. 377, 390. Miller v. Congdon, 14 Gray, 114. Hall v. Cushing, 9 Pick. 395. Eliott v. Sparrell, 114 Mass. 404, 406. Crocker v. Dillon, 133 Mass. 91, 95, 101. White v. Ditson, 140 Mass. 351, 355. Welch v. Adams, 152 Mass. 74. Shores v. Hooper, 153 Mass. 228. Brigham v. Morgan, 185 Mass. 27, 45. Bassett v. Granger, 140 Mass. 183. Little v. Little, 161 Mass. 188, 202. Porter v. Howe, 173 Mass. 521. Cummings v. Cummings, 143 Mass. 340, 344.
See now G. L. (Ter. Ed.) e. 205, § 1, cl. 1, Third. See also G. L. (Ter. Ed.) c. 206, §§ 1, 2.