287 Mass. 38 | Mass. | 1934
These cases are two appeals from decrees of the Probate Court, filed November 9, 1933, allowing the petition of Walter C. Tomlinson, administrator with the will annexed of the estate not already administered of Charles J. Keefe, late of Lawrence in the county of Essex, deceased, and the petition of Walter C. Tomlinson, administrator with the will annexed of the estate not already administered of Margaret C. Keefe, late of Lawrence in the county of Essex, deceased, praying that the court, in accordance with the provision of G. L. (Ter. Ed.) c. 215, § 39, determine the amount due Michael A. Flanagan and John J. Fox, junior, for attorneys’ fees in connection with the administration of said estates. Each appeal presents the same issues of law for the consideration of this court.
The appellants contend (1) that the court did not have jurisdiction to enter the decrees upon the allegations of the petitions and the facts found and reported by the court; (2) that, if the court had jurisdiction to enter the decrees, it adopted erroneous principles, or rules of law, in computing the amount allowable properly to the appellants, in that it allowed them for such services only as were “beneficial to the estates” (a ruling, in effect, that the appellants were not entitled to be allowed on the present petitions for all services rendered by them at the instance of said Raymond V. Keefe), and in that the court considered the so called conduct of the appellants in determining the value of their services to said estates, that is, their services which were “beneficial to the estates”; and (3) that the court acted improperly and unwarrantedly in proceeding to hear and determine the instant petitions in the absence of the respondents, who had no opportunity to give evidence or to be heard in argument after the appellants had brought properly to' the attention of counsel and the court that one of the appellants was actively engaged at the time of the hearing on the instant petitions at a continued hearing before a master of the Superior Court.
These petitions are brought under G. L. (Ter. Ed.) c. 215, § 39, which reads: “Probate courts may ascertain and determine the amount due any person for services as appraiser, for premiums of surety companies for acting as surety upon the official bonds of administrators, executors, trustees, guardians, conservators or receivers, or for services rendered by any person in connection with the administration of the estate of a deceased person, or with
In support of their contention that the court did not have jurisdiction to enter the decrees establishing the amount due the appellants for legal services in connection with the two estates, or, if it had jurisdiction it adopted erroneous principles in computing what sums should be paid the appellants for legal services rendered and for expenses incurred in connection with the administration of the two estates, the appellants contend that there is nothing in G. L. (Ter. Ed.) c. 215, § 39, to indicate a legislative intent that a probate representative of a deceased person should have a right to have determined the amount due to a person with whom such representative did not contract at any time; that the only intent of G. L. (Ter. Ed.) c. 215, § 39, is to make available to a person to whom any amount was due for services comprehended within the statute a summary mode of having the amount due ascertained, and the payment thereof enforced summarily, in lieu of being obliged to litigate the matter and extent of liability primarily in a court of law or equity. They further direct the attention of the court to the fact that Raymond V. Keefe, the legal representative of the estates, with whom they contracted, was and is the only person against whom the court might, summarily, under the statute, enforce payment of the amount determined to be due in the same manner as a like payment under a decree in equity may be enforced; and that under the instant statute the court could not properly have issued execution against the petitioner personally as upon a judgment at law, for the reason that the petitioner never incurred any contractual liability to the appellants. The appellants on their brief do not
We think the Probate Court had jurisdiction to order the decrees in fact made. Raymond V. Keefe had contracted with the appellants to render legal services in connection with the administration of both Keefe estates, and such services were rendered by them. They collected through a foreclosure sale assets of the estate of Charles J. Keefe amounting to $1,865.50 and retained them, asserting a right to deduct therefrom $1,817.60 for legal services and expenses rendered and paid in connection with the administration of the two estates and the foreclosure proceedings. The sums admitted by the appellants to have been collected in such proceedings were assets of the estate of Charles J. Keefe. They were held by the appellants for Raymond V. Keefe, administrator, in trust for the estate of Charles J. Keefe, which was in process of settlement in the Probate Court. The appellants charged with the trust money refused to turn it over to Raymond V. Keefe, and, sincé his resignation and the appointment of the petitioner in his stead and place, have made no reply to the petitioner’s written demand, as administrator, for the payment to him of said trust money. The general rule is that attorneys at law,' employed by a personal representative of a decedent to furnish legal services and make incidental disbursements in behalf of and for the benefit of the estate, have no claim against the estate as such for legal services rendered and incidental expenses incurred or disbursed in connection with the administration of the estate, but must look to the
In passing it may be noted that the personal representative of the estate of a deceased person in process of settlement in the Probate Court is not liable personally for services rendered the estate which he represents without his consent, and the estate cannot be charged for such services de bonis testatoris. Luscomb v. Ballard, 5 Gray, 403, 405. Mason v. Pomeroy, 151 Mass. 164. King v. Stowell, 211 Mass. 246, 251. In a proper case it may be possible by way of equitable substitution for a creditor rendering services beneficial to the estate to enforce the claim against the estate, as, for example, when an executor employing an attorney is insolvent but would have a right to have upon an accounting items for legal services rendered the estate and beneficial to the estate allowed by the Probate Court. King v. Stowell, 211 Mass. 246, 251.
It is plain that the appellants, on the facts, had no legal or equitable right to apply the trust money in their possession to the payment of their general claim against Raymond V. Keefe, and equally plain that they should have turned over the trust money intact to the petitioner upon his succession to Raymond V. Keefe. It is provided in G. L. (Ter. Ed.) c. 215, § 40, that “If an executor, administrator, guardian, conservator, trustee or receiver resigns or is removed, and neglects or refuses to deliver to his successor all property held by him under the trust, the probate court may, upon application of such successor or any person beneficially interested, order such delivery made, and shall have like powers for enforcing such order as are given to it by section thirty-four.” It thus appears that it was the duty of Keefe under the statute, on his resignation, to turn over the trust money to the petitioner on his appointment in succession to Keefe. It is obvious that the Probate
The decrees ordering the payment out of the estates of the sums named therein were in legal effect an adjudication of the amount due the appellants for which the estates were chargeable in the Raymond V. Keefe accounting. Whether the appellants have a further claim against Raymond V. Keefe, individually, under the contract of employment is not before this court on these appeals.
On the facts found there was no error in the order that the trial should proceed in the absence of the appellants.
Decrees affirmed.