Home RUTH GAY & others [Note 1] vs. PAULINE RICHMOND.

9 Mass. App. Ct. 334

January 10, 1980 - March 4, 1980

Suffolk County

Present: HALE, C.J., GOODMAN, & GRANT, JJ.

A reference in a will to a named person whom the testatrix described as her sister-in-law and who was in fact the sister of the testatrix's first husband was not ambiguous, and, therefore, the sister of the testatrix's second husband had no standing to claim that she was the sister-in-law to whom the testatrix referred. [336]

Although creditors and a legatee of an estate had standing to dispute an executrix's appointment and a probate judge erred in striking their appearances, the question of the executrix's competence and suitability would not be reopened by vacating her appointment where none of the creditors' and legatee's claims would have been sufficient to permit the judge to reject the testatrix's choice of her executrix. [336-337]

A probate judge erred in denying alleged creditors of an estate the right to be heard on the question whether the executrix should be exempt from giving a surety on her bond pursuant to G. L. c. 205, Section 4. [337-338]

PETITION filed in the Probate Court for the county of Suffolk on November 28, 1977.

The case was heard by Warner, J.

The case was submitted on briefs.

Julius B. Levine for the plaintiffs.

William D. Barry for the defendant.

HALE, C.J. On November 28, 1977, Pauline Richmond filed a petition for probate of the will of Edna P. Kaplan dated October 1, 1977. Howard Kaplan, Julian Stag and Jacob Kaplan (the Kaplan brothers) and Ruth Gay filed appearances on December 6, 1977; Nita Buglio filed an appearance

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on December 27, 1977. Richmond filed motions to strike all those appearances for lack of standing. The motion to strike the appearances of the Kaplan brothers and Gay was heard by a judge on statements of counsel and on briefs submitted in support of and in opposition to the motion. Briefs were also filed on the motion to strike the appearance of Buglio. Several theories were argued in support of their standing. The judge allowed both motions without making written findings or rulings. A motion to stay the probate proceedings pending this appeal was denied. The will was allowed, and Richmond was appointed executrix, her bond to be without sureties. The Kaplan brothers, Gay and Buglio (the appellants) appeal only from the allowance of the motions to strike.

The first clause of the will provides for seven $5,000 legacies. One such legacy is "to my sister in law Pauline Richmond," and a second is "to my niece, Nita Buglio." The third clause of the will gives the residue of the estate to "my sister in law, Pauline Richmond." She is named executrix by use of the same language in the fourth clause. Richmond was the sister of the first husband of the testatrix. Gay and the Kaplan brothers are, respectively, the sister and brothers of the testatrix's second husband. Buglio is Gay's daughter. None of the appellants is an heir of the testatrix. Among the grounds asserted by the appellants in support of their claims to standing is Gay's claim that she is entitled to show that she was named in the will. Gay argues that as Richmond had ceased to be the sister in law of the testatrix when her brother, the testatrix's first husband, died, the phrase "my sister in law Pauline Richmond," used three times in the will, should be construed to refer to Gay, as she was the only true sister in law of the testatrix at the time the will was executed. Buglio makes various claims, including one based on her mother's claim that she is named in the will. Gay and the Kaplan brothers also claim that as creditors of the estate they have standing to challenge the appointment of the executrix, and Buglio claims the same right as a legatee.

Page 336

We first dispose of Gay's claim that she is the "sister in law Pauline Richmond" named in the will. We agree with the judge's statement to counsel for the appellants made at the motion hearing that he was "really reaching" in making such a claim. The language of the will is unambiguous; the intent of the testatrix is unmistakable from that language. No claim as to the technical application of the term "sister in law" can change the fact that "Pauline Richmond" means Pauline Richmond, and there can be no doubt that the testatrix intended to refer to the sister of her first husband when she added the description "sister in law" to Richmond's name. Because there is no ambiguity on the face of the will, no extraneous matter could have been shown to create an ambiguity. Whitbeck v. Aldrich, 341 Mass. 326, 329 (1960). Gay had no standing on that basis. [Note 2]

Gay and the Kaplan brothers also claim that they have standing as creditors of the estate to challenge the appointment of Richmond as executrix, by virtue of contract and tort claims they have asserted against the estate based on the failure of the testatrix to bequeath them property which she would receive from their brother's estate. Buglio claims this right as a legatee. The status of the four as creditors was conceded by Richmond at the hearing on the motion to strike their appearances. At that hearing she argued that under Marcus v. Pearce Woolen Mills, Inc., 353 Mass. 483, 485-486 (1968), only a creditor of the decedent who has attached the decedent's property has standing to appear. Marcus is not authority for that principle. To the extent the judge relied on this argument in deciding the motion, he was in error.

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The question whether a creditor or legatee has standing to challenge the appointment of a personal representative named in a will is distinct from the question of standing to challenge allowance of a will. No one can have an interest in the allowance of a will solely by reason of his being a creditor of the deceased, as it is of no concern to a creditor whether his debtor dies testate or intestate. Monroe v. Cooper, 235 Mass. 33, 34-35 (1920). A creditor or legatee does, however, have an interest in the competence and suitability of the executor, and therefore would have standing to dispute the executor's appointment. See G. L. c. 192, Section 4; Neal v. Boykin, 129 Ga. 676, 682-683 (1907); In re Hall's Estate, 233 Iowa 1148, 1151-1152 (1943); Newhall, Settlement of Estates and Fiduciary Law in Massachusetts Section 41, at 148 (4th ed. 1958). However, none of the vague charges of possible conflicts of interest made by the appellants against Richmond at the hearing on the motions to strike or in the briefs they submitted to the judge would have been sufficient, if proved, to permit him to reject the testatrix's choice of her executrix. See Grossman v. Grossman, 343 Mass. 565, 568 (1962); Newhall, supra Section 46, at 164. See also Colbert v. Hennessey, 351 Mass. 131, 143-147 (1966) (removal of executor). Certainly, these claims do not provide us with a basis for reopening the question of the competence and suitability of the executrix by vacating her appointment. In fact, the appellants have not asked that we do so (Mass. R.A.P. 16[a][5], 365 Mass. 861 [1974]), and they did not appeal either from the denial of a stay pending appeal or from the appointment of the executrix.

Despite the appellants' stated preference not to "have to go and sue on a bond," they are fully protected as creditors in this case. Under G. L. c. 205, Section 4, creditors have the right to be heard on the question whether the executrix shall be exempt from giving a surety on her bond. [Note 3] We see no

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reason why Buglio, as a legatee, should not be afforded the same right. [Note 4] If it is made to appear that a bond with surety is needed, the executrix can be required to furnish one. Should the executrix fail to do so, if so required, she would in effect remove herself from the trust. [Note 5]

It was error to have denied the appellants the right to be heard on the matter of requiring sureties. We are of the opinion that this right must now be afforded to them. The orders striking the appearances are vacated. The appellants are to be allowed to file motions under G. L. c. 205, Section 4. So ordered.


[Note 1] Howard Kaplan, Julian Stag (formerly Kaplan), Jacob Kaplan and Nita Buglio.

[Note 2] Buglio's argument that she acquired by a contract made with Gay an adverse interest sufficient to give her standing as a legatee to argue that her mother was the "sister in law" named in the will depends on her mother's claim of ambiguity in the will and therefore fails. See Old Colony Trust Co. v. Bailey, 202 Mass. 283, 290 (1909). Her other arguments in support of standing, other than her claim of standing to challenge the appointment of the executrix discussed below, are without merit and require no discussion.

[Note 3] General Laws c. 205, Section 4, as amended by St. 1941, c. 45, Section 1, in pertinent part reads: "An executor shall be exempt from giving a surety on his bond if the testator has ordered or requested such exemption or that no bond be required . . . but not until all creditors of the estate . . . have been notified and have had opportunity to show cause against the same. The probate court may, however, upon or after the granting of letters testamentary . . . require bond, with sufficient sureties, and failure to furnish the same within such time as the court orders shall constitute a declination of or a resignation from the trust."

[Note 4] If Buglio has been paid her legacy during the pendency of these proceedings, she is no longer in a position to be heard.

[Note 5] The appellants are not without other rights if an executrix fails or is unable to bring an action to enforce a claim in favor of the estate. See G. L. c. 230, Section 5. See also Aetna Casualty & Surety Co. v. Hill, 359 Mass. 628, 633 (1971). See further G. L. c. 195, Section 11.