294 Mass. 138 | Mass. | 1936
This case involves a decree for distribution of the estate of Agnes Welch, who died intestate in Lowell in 1929. The respondent, the husband of a niece of the intestate, was appointed upon his own petition as administrator of the estate of the intestate in September, 1929; in that petition he stated that she left no husband and as her only heirs at law and next of kin James Welch, hereafter called the petitioner, described as her brother, and other persons described as nephews, nieces, grandnephews and grandnieces; the residence of the petitioner was stated to be Boston, Massachusetts. The first account of the respondent as administrator was allowed, showing a considerable balance entirely in cash. The respondent then filed the petition for distribution of such balance, alleging that the persons entitled thereto were named nephews, nieces, grandnephews and grandnieces, and making no mention of the petitioner. By decree of October 17, 1930, and upon warrant dated November 6, 1930, distribution of such balance was ordered in stated sums among the kindred named in the petition for distribution; the petitioner was not included in that decree
The respondent has not appealed from the decree of November 28, 1934. There was a manifest mistake in the original decree of distribution, which upon the facts now disclosed ought to be corrected: The decree of November 28, 1934, in form and substance conforms to established practice, where the administrator is without fault and has performed his duty and no further circumstances are disclosed. Harris v. Starkey, 176 Mass. 445. Loring v. Steine-man, 1 Met. 204. Pierce v. Prescott, 128 Mass. 140. Knowles v. Perkins, 274 Mass. 27, 33. G. L. (Ter. Ed.) c. 206, § 22.
The petitioner contends that upon the facts recited in the findings the respondent “was guilty of negligence in connection with the making of the original order of distribution,
There is no express finding in the case at bar that the respondent was negligent. There is the finding that the respondent acted honestly and in good faith. That, however, is not enough. Not1 infrequently, trustees whose conduct has met that standard have been compelled to make good losses to the trust fund solely because of failure to exercise sound judgment in investments. There is no finding in terms that the respondent conformed to the general rule of conduct just stated. It is found, however, that by exercising more diligence he might have located the petitioner, or ascertained that he was living. The facts found and already narrated show that the respondent was mildly active, if not actually slothful, in his attempt to locate the petitioner. He was described in the respondent’s petition-for administration as a brother of the intestate, resident in Boston. Of course that description did not establish the fact. Hopkins v. Treasurer & Receiver General, 276 Mass.
The findings of fact by the trial judge must be accepted as true. The evidence is not reported. The decree of November 28, 1934, is within the scope of the petition. The entry of that decree imports the drawing of all rational inferences from the facts found, so far as permissible, to support that result. Peabody v. Dymsza, 280 Mass. 341. Seager v. Dauphinee, 284 Mass. 96, 98. Karas v. Karas, 288 Mass.
Ordered accordingly.