Rowell v. Milliken

Carroll, J. This is an appeal from decrees of the Probate Court allowing the second and third accounts of the executor of the will of James I. Milliken, and from an order denying the appellant’s motion to reopen the first account of the executor. In the inventory of the estate of James I. Milliken were seven hundred two shares of Everett Mills stock, appraised at $135,837; twenty-five shares of York Manufacturing Company, appraised at $5,000; and two hundred shares of Nashua Manufacturing Company seven per cent preferred stock, appraised at $19,600. The appellee was appointed executor May 16,1921. In July, 1924, he sold fifty-two shares of the Everett Mills stock at a loss of $4,041.83 from the appraised value; in April, 1927, he sold fifty shares of the Nashua Manufacturing Company stock at a loss from the inventory value of $209.25. In the first account of the executor, allowed after a hearing on November 4, 1926, the executor asked to be allowed for the loss on the Everett Mills stock. Counsel appeared for the appellant and other parties interested in the will. On November 24, 1926, the appellant appealed from the allowance of the first account, and in February, 1927, a motion to dismiss the appeal for the reason that the appellant failed seasonably to prosecute her appeal was granted. [452] The appellant filed a petition to reopen the first account; and, the executor having filed his second and third accounts, the appellant opposed their allowance. A hearing was held on this motion and on the allowance of the second and third accounts. The motion was denied and the accounts were allowed. The appellant appealed. The appellant offered to show that the Everett Mills stock and York Manufacturing Company stock steadily decreased in value; that transfers of the Everett Mills stock were made in the market from May 16,1921, to May, 1923, at prices from $175 to $190 a share; that the executor refused to sell some of the Everett Mills stock at $175 per share, and did not sell in 1922 and 1923 at market prices. It is stated that the market value of Everett Mills stock at the time of the argument was $9 a share. According to the record in this case, at the hearing on the first account the matters now sought to be opened were fully heard; the appellant was represented by counsel; she had the opportunity to present evidence tending to show that the executor in the faithful discharge of his duty should have diversified the securities held by him and disposed of those which were depreciating in value. Matters in dispute previously heard and determined by the Probate Court are not to be again brought in question by the parties to the dispute without leave of court. G. L. c. 206, § 19. Barrett v. Briry, 256 Mass. 45. It further appeared at the hearing to reopen the first account that the matters now in dispute were passed upon by the court; that an attempt was then made to charge the executor with the loss which occurred in the stock from the time it came into the executor’s possession until the end of the account. At the hearing on the first account there was testimony by the executor that he realized he could not hold so large an amount of Everett Mills stock, and that he had endeavored to ascertain the value of the stock, seeking information from brokers and the officers of the corporation; that the appellant did not wish the stock to be sold. There is nothing in the offer of proof which entitled the appellant to have the first account reopened, as matter of law. That [453] account was settled; the executor was allowed for loss in the sale of part of the stock, and he was permitted to retain the remainder. The fact that sales of stock were in the market did not require the account to be opened, and the discretion of the judge was not abused. Thompson v. DeVisser, 219 Mass. 40, 43. We discover no reason why the new evidence was not available at the former hearing. It does not follow that if this evidence had been presented there was any error in allowing the first account. Whether an executor should sell or hold securities belonging to an estate is a question of fact, and the judge, who was acquainted with the textile situation at the time and heard all the evidence offered, found that the executor did not act in violation of his trust. The evidence at this hearing is not reported and there is nothing to show that the judge was wrong. State Street Trust Co. v. Walker, 259 Mass. 578, 582, 583. The first account covered the period from May 16, 1921, to December 31, 1925; it was allowed after a full hearing on November 4, 1926. As we construe the record the issue in connection with the second and third accounts relates to a motion to reopen the first account. Substantially all of the evidence contained in the offer of proof relates to the period covered by the first account. Counsel for the appellant stated in response to a question of the judge that his offer of proof covered the questions he intended to raise; and in the offer of proof it was admitted that “the matter that is now raised has been before the court before.” It was admitted that on the facts then before the court the finding was justified, that the testimony offered was obtainable but not presented at the hearing on the first account. And we can find nothing to show that in carrying the items in the second and third accounts at inventory value, the appellants objected in case the first account cannot be opened. The offer of proof shows that the principal depreciation occurred during the period covered by the first account. At least no definite offer of proof was made to show a shrinkage in value in the period embraced in the second and third accounts; and whatever was said in the offer relating to a subsequent depre [454] ciation was addressed to the court in support of the motion to reopen the first account, and it is apparent that the judge so understood it. In the brief of the appellant it appears that the stock could have been sold within “two years after” the appointment of Rowell “at substantial prices,” and the matters argued in the appellant’s brief relate to the refusal to open the first account. The appellant had her day in court. The first account was allowed after a full hearing, and no reason is shown for the granting of the motion to open this account. Pepper v. Old Colony Trust Co. 262 Mass. 570, and cases cited. There was no error in allowing the second and third accounts. The decrees are to be affirmed; the order denying the motion to reopen the first account is affirmed. Ordered accordingly.