LOUISE MORGAN vs. CARL MORGAN & others. THE UNION MARKET NATIONAL BANK OF WATERTOWN VS. LOUISE MORGAN & others.

SANDERSON, J. This is an appeal by Louise Morgan, widow of Otto F. Morgan, from a decree of the Probate Court appointing Allan G. Buttrick administrator of her husband's estate, and also an appeal from a decree dismissing her petition for appointment as administratrix of the same estate.

The deceased had disappeared about February 24, 1928, and six weeks later the fact of his death first became definitely known. On March 1, 1928, a creditor's petition in bankruptcy was filed against him upon which he was duly adjudicated a bankrupt, and Allan G. Buttrick was appointed receiver and trustee in bankruptcy. He converted most of the assets of the estate into money which he was holding at the time of the hearing in the Probate Court, and had been at all times willing to account to any court for his dealings with the property. On May 2, 1928, the bankruptcy petition was dismissed on the ground that when it was filed Morgan was dead. An order was then made that the receiver settle his accounts in the bankruptcy court and turn over the property to Morgan's administrator. On April 13, 1928, the widow filed her petition for appointment as administratrix. On April 20,1928, upon petition of a creditor, Allan G. Buttrick was appointed special administrator. On April 21, 1928, a petition for the appointment of Mr. Buttrick or some other suitable person as administrator was filed by a creditor. G. L. c. 193, § 1, provides that administration shall be granted to one or more of the persons thereinafter named if competent and suitable for the discharge of the trust and willing to undertake it, "unless the court deems it proper to appoint some other person." The widow of the deceased is named first, the next of kin second, and then follows the provision that "If none of the above are competent or if they all renounce the administration or without sufficient cause neglect for thirty days after the death of the intestate to take administration of his estate, one or more of the principal creditors . . . ."

On April 13,1928, the judge heard testimony and received statements of counsel in lieu of testimony on the petition of

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the widow and found that she was not a suitable person to be appointed. He stated that he deemed it proper to appoint some other person as administrator. On June 27, 1928, a hearing was held on the creditor's petition. At this time the decree on the petition of the widow had not been entered and at the request of her counsel the judge stated that he would accept all testimony then to be introduced on both petitions, and that he would take into consideration as bearing on both testimony introduced and statements made at the previous hearing. To this method of procedure no objection was made, and a stenographer was then appointed to take evidence under G. L. c. 215, § 18. The case, however, had been partly heard before the arrival of the stenographer, and the record does not show the entire testimony offered on June 27, and contains none of the evidence considered by the judge on April 13. In this state of the record his conclusions, based upon what took place at both hearings, must stand unless it appears from the findings themselves that they are wrong as matter of law. The judge found that the deceased died more than thirty days before the creditor's petition for the appointment of an administrator was filed. The heirs at law within the Commonwealth and some creditors favored the appointment of Mrs. Morgan, but nearly all of the creditors both in number and in amount favored the appointment of Mr. Buttrick.

The deceased had been a dealer in motor vehicles and his wife handled a part of this business for him. The judge found that he had conducted his business largely by fraudulent means, having caused employees, relatives and friends to sign promissory notes secured by fictitious conditional sales agreements of motor vehicles which were never delivered or intended to be delivered; that the notes and conditional sales agreements had been fraudulently sold, pledged and mortgaged, and on many occasions the deceased had sold, pledged or mortgaged the same motor vehicle to different persons; that a number of replevin actions had been brought by claimants of automobiles held by a warehouseman with whom the deceased had stored them; that other litigation had been begun or threatened; that the estate of the deceased was in a

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complicated and confused condition and there was reasonable ground to suspect the existence of hidden assets belonging to the estate, discovery of which would require skill and experience; and that it would be unwise, inefficient, and a considerable burden and expense to the estate, to appoint as administrator a person having no previous knowledge of the situation. He repeated the finding that Mrs. Morgan was not a suitable person to administer the estate and stated again that he deemed it proper to appoint some other person. He also found that Mr. Buttrick was a fit and suitable person to be appointed. On June 27, 1928, decrees were entered, dismissing the petition of Mrs. Morgan and appointing Mr. Buttrick administrator. From these decrees Mrs. Morgan appealed.

A person may be unsuitable because the problems involved in the settlement of the estate are unusual and troublesome, or because the appointment would be likely to render the execution of the trust perplexed or difficult. See Winship v. Bass, 12 Mass. 198, 200. The best interests of the estate as a whole are to be considered, and unfitness may arise solely out of the situation of the person in connection with the estate without proof of physical or mental incapacity. Stearns v. Fiske, 18 Pick. 24. Thayer v. Homer, 11 Met. 104, 110. Osborne v. Craig, 251 Mass. 169, 173. The judge of probate may refuse to appoint if for any reason the petitioner is unsuitable to administer the trust. Davis, petitioner, 237 Mass. 47, 49. Osborne v. Craig, supra, page 171. See Worcester County National Bank, petitioner, 263 Mass. 444, 460.

The clause in G. L. c. 193, § 1, "unless the court deems it proper to appoint some other person," following the provision that the court should grant administration of the estate of a deceased intestate to persons in the order named, first appeared, in substance, in St. 1914, c. 356, amending R. L. c. 137, § 1, where in one clause the requirement for the appointment of the widow of the deceased if competent and willing to take the office was followed by the qualifying words "unless it is necessary or proper to appoint some other person"; in the next clause the provision for the appointment of next of kin was followed by the same qualifying

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words. The apparent purpose of this amendment was to give the Probate Court a new discretionary power to consider the competency and suitableness of the petitioning party for the discharge of the trust. Upon the record presented to this court the decree dismissing the petition of Mrs. Morgan cannot be said to be wrong as matter of law.

The appellant's objection to the appointment of Mr. Buttrick, as stated in the record, is that his interest as administrator would be adverse to his interest as receiver and trustee in bankruptcy. There is no contention that he is otherwise disqualified. "An executor or administrator is deemed unsuitable when he has any conflicting personal interest which prevents him from doing his official duty." Putney v. Fletcher, 148 Mass. 247, 248. The appointee has no personal interest in the estate of the deceased, and no conflict of interest has been shown that necessarily would prevent him from impartially protecting and prosecuting the interests of the estate. See Putney v. Fletcher, supra. In so far as his appointment is concerned, the case might be disposed of on the ground that the objection now urged should have been presented, if at all, when he was appointed special administrator. To him in that capacity, the trustee in bankruptcy, whose duties had come to an end, would be expected to turn over the assets in his hands. See Drake v. Oreen, 10 Allen 124, 126. It is not suggested that Mr. Buttrick did not faithfully administer his trust in the bankruptcy court and diligently collect and realize on the assets that could be discovered. "The appointee should be a fitting person having regard to the special conditions of each estate and those interested in it as creditors, legatees, and next of kin. Suitableness is capacity founded on the innate and acquired qualities of the particular person in his relation to the situation of the estate to be administered, and to those directly and indirectly to be affected by the settlement of the estate. Attention may be given to personal characteristics and to all the other causes, not easily susceptible of enumeration, rationally affecting a judicious selection." Davis, petitioner, 237 Mass. 47, 49, 50. The intimate knowledge gained by the appointee from having partially administered this

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complicated and difficult estate, the desirability of having the estate entrusted to a competent member of the bar, and the wishes of the larger number of creditors, may well have influenced the judge in his decision.

We find no reversible error in the appointment of Mr. Buttrick as administrator.

Decrees affirmed.