299 Mass. 417 | Mass. | 1938
The first matter is here upon the appeal of Emil A. Untersee, executor of the will of Franz Joseph Untersee, from a decree of the Probate Court allowing his first account with amendments reducing the amounts of certain items of credit to him for payments contained in schedule B, striking out altogether other items in said schedule, and charging the executor with a correspondingly increased amount in schedule C.
The second matter is here upon the executor’s appeal from a decree of the Probate Court allowing to Maximilian Untersee $4,000 for counsel fees and $286.73 "costs and expenses” upon his petition hereinafter described.
Franz Joseph Untersee died September 5, 1927. He had been an ecclesiastical architect. At the time of his death he was engaged upon ten different jobs for various religious institutions. The first clause of his will read as follows:
“To my sons, Carl R. and Maximilian Untersee of said Brookline, I give the good will of my business, books on architecture, plans, drawings and tools used by me in my profession as an architect, but not my book accounts, which are to form part of the residue of my estate.”
The remainder of the will does not appear in this record.
The testator’s sons, Carl and Maximilian, had been associated with the testator in his architectural work before his death and were acquainted with the jobs then unfinished. Carl and another son, Emil, the present accountant, were appointed executors. After a few months Carl died, and Emil, as surviving executor, continued the settlement of the estate. Carl and Emil undertook as executors to
Shortly after the filing of the executor's account Maximilian filed in the Probate Court a petition in equity "for a determination of the value” of the legacy described in the first clause of the will hereinbefore quoted. Both the account and the petition in equity were referred to the same person as “auditor” whose findings were to be final. Before the filing of the auditor’s report on the account a final decree was entered on the petition in equity declaring that the right to negotiate contracts for the architectural work upon the uncompleted jobs "was a part of the legacy to Maximilian and Carl,” that the executors had no right to undertake this work, and that Maximilian and the estate of Carl were entitled to receive from Emil, the surviving executor, as part of the legacy the sum hereinbefore mentioned of $8,528.01 which the executor had realized from the doing of this work. The correctness of this decree is not before us. An attempt to have it revoked ended in an appeal to this court which was decided upon grounds not affecting the merits of the decree. Untersee v. Untersee, 293 Mass. 132.
While the executor’s account and the petition in equity were both pending Maximilian filed a “motion” or petition,
1. We deal first with the executor’s account. The respondents in this proceeding contend that the auditor’s report, although printed with the appeal, is not properly a part of the record and cannot be considered, on the grounds that “The parties did not agree that the findings of the auditor should be submitted to this court as facts or evidence nor did any decree make the auditor’s report a part of the record,” and that the “report does not contain all the facts before the trial justice.” We do not agree with this. When the Legislature by statute, now G. L. (Ter. Ed.) c. 221, § 57, authorized the appointment of auditors in proceedings on probate accounts we think it intended to give to their reports, in so far as might be consistent with the necessities of probate practice, a status similar to that of auditors’ reports in common law actions. In Gallagher v. Phinney, 284 Mass. 255, 257, it is said that an auditor’s report under this statute “stands like an auditor’s report at common law.” It is now settled that in actions at law where the court has appointed an auditor with the order that his findings of fact shall be final the auditor becomes the primary fact finding tribunal. Sojka v. Dlugosz, 293 Mass. 419, 422, and cases cited. His report is in effect a case stated and as such is of itself a part of the record. Merrimac Chemical Co. v. Moore, 279 Mass. 147, 152. Raymond v. Davies, 293 Mass. 117. Old Colony Railroad v. Wilder, 137 Mass. 536, 537. Whether or not “case stated” as a technical term may with accuracy be used in probate practice, there would seem to be no reason why, with agreement of the parties interested, an auditor’s findings of fact on a probate account may not be made final and no reason why, when so made, such findings should not have substantially the same effect as the basis of the decision that similar findings would have in an action at law.. G. L. (Ter. Ed.) c. 231, § 126, recognizes the possibility of a case stated in probate proceedings. See § 144. See Rules
The findings of the auditor are detailed and explicit to the effect that Carl and Emil as executors, with the assent of Maximilian and certain other beneficiaries, employed an attorney of good reputation who had been in practice forty-nine years; that he advised them that it was the' executors’ duty to continue the uncompleted work for the benefit of the estate; that Carl and Maximilian understood, accepted and relied upon this advice to the same extent as did Emil and did the architectural work in behalf of the estate until Carl’s death; that thereafter Maximilian continued so to perform the work and continued in the belief that its performance was an obligation of the estate until after the filing of the executor’s account here in question; that Carl and Maximilian assisted in making arrangements with some of the owners for the completion of the work by the estate and signed a petition for compromise of one of the claims made by the estate for these services. It is further found that “all of the beneficiaries” understood and accepted the advice of the attorney and “acquiesced in the course of conduct occasioned thereby.” The “decision of the executors Carl and Emil to undertake the completion of the ten jobs as obligations of the estate and to engage Carl and Maximilian at $75 each per week to perform architec
Upon these findings we are satisfied that neither Maximilian nor the estate of Carl is in a position to object to the allowance of items for services and expenses incurred as a consequence of the assumption by the executors of the uncompleted work. Carl was himself one of the executors until his death. Both Carl and Maximilian accepted the advice of the attorney and participated in the undertaking and performance of the work by the estate. They were as much responsible for the performance of the services and the incurring of the expenses as was Emil, the present accountant. Neither they nor their representatives can now repudiate the whole course of dealing and throw the burden upon Emil to their own advantage. As to them the disputed items of schedule B must be allowed. Poole v. Munday, 103 Mass. 174. Tracy v. Bishop, 298 Mass. 182, and cases cited. Brigham v. Elwell, 145 Mass. 520. We are also of the opinion, though with more hesitation, that these items must be allowed as against the other beneficiaries. We interpret the findings as meaning that all of the beneficiaries in some manner indicated their approval of the course adopted either before the work was undertaken or while it was going on.
We do not understand that the contention is made that the decree on the petition in equity awarding to the estate of Carl and to Maximilian as a part of their legacy the $8,528.01 which the executor had realized from completing
2. The paper which initiated the proceeding upon which costs for counsel fees and expenses were awarded was entitled “Estate of Franz Joseph Untersee In the Matter of the Equity Petition and First Account of the Executor Motion for Counsel Fees and Cost.” It refers to services and expenses in both matters. Neither the final decree on the petition in equity which was entered March 25, 1935, nor the decree on the account, which bears the date of January 15, 1937, contains any mention of this motion or of costs. But also on January 15, 1937, nearly two years after the decree in equity a separate “decree” was filed “In the matter of the motion for counsel fees and costs.” This is the only decree dealing with costs. On March 8, 1937, the judge made a separate “Report of Material Facts” relating to the decree for costs, which, however, he entitled as in “Matter of the First Account . . . Decree Allowing Costs
The result is that both decrees appealed from are reversed, and a new decree in accordance with this opinion is to be entered on the account.
Ordered accordingly.