Osborne v. Craig

Carroll, J.

The testator died August 5, 1923. In his will his sons Roy W. Osborne and Archer P. Osborne were named as executors and trustees. His widow was given one third of the estate, the remaining two thirds to be divided among his children. The share of his daughter Eva W. Craig was to be held in trust, the income to be paid to her during her life, and at her death the principal was to be held for her children. If the income was not sufficient to support her, the trustees were given discretionary power to pay to her any portion or the whole of the principal. The executors, by a codicil, were given discretionary power to divide among the children certain personal property. In 1918 Roy W. Osborne, the appellant, was appointed executor of his aunt’s will. The Probate Court found that he had failed, without adequate excuse, to administer that estate promptly; that his inventory and account were not filed until the year 1922, “ and were only filed then because of the insistence of his sister, Eva W. Craig, and her attorney, although he knew that Mrs. Craig had an advantageous offer to sell a parcel of real estate the title to which in some manner depended upon the completion of his work as executor. By reason of his delay Mrs. Craig lost her opportunity to sell the property.” The court further found that the appellant and his sister, Mrs. Craig, do not speak to each other, are mutually antagonistic; that the testator’s widow, the stepmother of the appellant, objected to his appointment; that it was doubtful if the appellant “ would give proper consideration to the rights and wishes of his sister, Mrs. Craig, if called upon to exercise the discretionary powers given to him in the will and codicil.” A decree was entered that Roy W. Osborne was not suitable for the trust; letters testamentary to be issued to Archer P. Osborne. From this decree appointing Archer P. Osborne the sole executor, Roy W. Osborne appealed.

The decision of the Probate Court in refusing to appoint the appellant one of the executors of his father’s will, and appointing Archer P. Osborne sole executor, should not be reversed unless it is plainly wrong. Allen v. Allen, 117 Mass. 27. Dexter v. Codman, 148 Mass. 421. A sound discretion rests in the Probate Court when called upon to decide whether an executor or administrator is unsuitable. All the evidence is reported, and it is our duty to examine it and decide the case according to our own judgment; but the discretion of the judge who heard the evidence and saw the witnesses is entitled to great weight, and his decision will not be disturbed unless we are satisfied that it was clearly erroneous and not supported by the evidence. Winship v. Bass, 12 Mass. 198. Allen v. Allen, supra. Wilbar v. Diamond, 249 Mass. 568.

A careful examination of the testimony satisfies us that the Probate Court was warranted in finding that the appellant was not a suitable person to be appointed executor. There was evidence showing that he failed to administer another estate with due diligence and with proper efficiency; that because of this delay his sister lost a purchaser for the property which was a part of her aunt’s estate; that when he and his sister met at their father’s funeral they were not on friendly terms; and that his stepmother opposed his appointment. She testified, “ he was very firm and set in his way,” that when “ I told him that I could not have him over me, ... he said ... he was going to do what he wanted to and wasn’t going to be controlled by anybody but himself”; that she “ felt timid for him over . . . [her] charge.” Without further reviewing the evidence, we are satisfied that the judge could find the appellant was unsuitable, and could infer that this condition continued; and that at the date of the petition and at the time of the hearing the appellant should not have been appointed, because unsuitable.

The Probate Court can remove an executor if he becomes “ insane or otherwise incapable of performing the trust, or is unsuitable therefor.” G. L. c. 195, § 11. The court has the power to refuse to appoint an executor named by the testator if he is incapable of performing the trust, or is unsuitable. It can remove such a person, although duly appointed; and it can refuse, upon adequate evidence, to appoint him, if satisfied he is for any reason unsuitable. G. L. c. 192, § 4, providing that, if a will has been duly approved and allowed, letters testamentary shall be issued to the executor named therein, “ if he is legally competent and a suitable person.” See in this connection Bowditch v. Banuelos, 1 Gray, 220, 231, 232; Cogswell v. Hall, 183 Mass. 575.

Decree affirmed.