O'Shea v. Hurley

Pierce, J. This is an appeal from an interlocutory decree overruling exceptions and confirming the master’s report, as also an appeal from a final decree ordered by a justice of this court. William O’Shea, now deceased, was appointed on July 24, 1899, one of three executors under the will of Michael Hurley. As one of the executors O’Shea filed an account in the Probate Court on July 22, 1902, which was opposed by the legatees under the will (children of said Michael Hurley), two of whom were also coexecutors with the accountant. The Probate Court after extended hearings settled the account; and both parties, being aggrieved, appealed to the Supreme Judicial Court with statements of their objections to the decree of that court, which were entered on March 27 and on April 5, 1911, in the Supreme Judicial Court. [194] A single justice of this court appointed a master “ to hear the parties and their evidence, find the facts and report the same to the court forthwith.” The master heard the parties upon their objections, and made his report on May 10, 1913. The heirs of Michael Hurley are described in the report of the master as appellees, and will be spoken of under that designation. They brought in objections in writing, which were appended by the master to the report; and by leave of court duly filed forty-six exceptions founded on the objections. The evidence is not reported and no motion was made or denied to recommit to the master to receive, reject or report evidence. The exceptions numbered 1 to 25 inclusive voice merely the dissatisfaction of the appellees with specific findings of fact. No one of them is argued or mentioned in the brief and they are consequently treated as waived. Exceptions 26, 27, 28, 29, 42, 43 and 44 are based upon corresponding objections to the refusal of the master to receive certain evidence and to his refusal to make certain rulings of law. The evidence was offered and rulings were requested on the theory of the appellees that the executor O’Shea was bound to account to the estate of Michael Hurley for money which he had received, or should have received, as trustee of the bankrupt estate of the Hurley Shoe Company and of the estate of Farrell and Hurley, in both of which the Michael Hurley estate was the heaviest creditor, among over one hundred creditors who proved their claims in bankruptcy against those two estates. The argument for the admission of the evidence rests upon the fact that these bankrupt estates would have declared and the estate of Michael Hurley would have received a larger dividend in settlement of each estate than in fact it did receive, if the trustee had with due diligence collected and accounted in the bankruptcy court for large sums of money which do not appear to have been accounted for in the trustee’s accounts of said estates in the bankruptcy court. The offered evidence adds no material facts to those found by the master which aid in the determination of the question whether the master was right in ruling that the Probate [195] Court, in the settlement of the executor’s account, was without jurisdiction to inquire whether the trustee in bankruptcy (who was also the executor whose account was under examination), was guilty of a breach of his duty as executor by reason of the fact that he was guilty of maladministration in the office of trustee in bankruptcy to the probable diminution of assets that should have come to the estate in process of probate. The ruling was right. If the trustee did. not collect all the assets or account for what he collected, the remedy of a creditor was to have the trustee removed and a new trustee appointed, who would make distribution under the order of the court. The Probate Court had no jurisdiction affecting the bankruptcy cases, except to charge the executor for what actually came into his hands, under the decree of the bankruptcy court, as executor of the Michael Hurley estate and as creditor of the bankruptcy estates. And it is settled that a creditor cannot sue the trustee direct, even for admittedly unaccounted for assets, because he would be entitled to receive from the trustee only his proportionate share of an unascertained share of the balance found due after an accounting and order for distribution in the bankruptcy court. There is nothing in the fact that the funds of executor, trustee, and individual were commingled in a single bank account which calls for discussion in this connection. It results that these exceptions were properly overruled. Exceptions 32 and 41, to the refusal of the master to rule that O’Shea should be charged with the difference between what the executor received from Sheehan as a debtor of the Hurley estate and what he would have received from Sheehan in the exercise of due diligence as executor, were overruled rightly, upon the facts stated by the master, which, succinctly stated, are that O’Shea, as attorney for Sheehan, after suit collected a sum of money, out of which O’Shea paid the estate a considerable sum with the permission of Sheehan, but paid the balance to Sheehan. We find nothing inconsistent with the duty of the executor in making such payment to Sheehan or in his not advising his coexecutors to consult counsel with a view to securing the Sheehan [196] money for the benefit of the estate of Michael Hurley, as is argued by the appellees. Exception 37 was overruled rightly. The master heard the parties on the question of the executor’s claim to be allowed for services rendered Michael Hurley in his lifetime, in the belief that both parties desired the claim to be passed upon and that both parties had waived the provision of R. L. c. 141, § 6, and the rule laid down in Buckley v. Buckley, 157 Mass. 536. In the circumstances his finding should not be disturbed. The report shows that the question raised by the remaining exceptions were carefully examined by the master. We agree with that analysis without further discussion. It results that the decrees should be affirmed with costs. Ordered accordingly.