Mongeau v. McKay

183 N.E. 349, 281 Mass. 101, 1932 Mass. LEXIS 1125

• Court: Massachusetts Supreme Judicial Court
• Decided: November 28, 1932
• Status: Published

Opinion

Wait, J.

This is an appeal from a decree of a probate court which disallowed an item in an executor’s account.

Witnesses were heard. The judge filed a statement of the facts found by him. The evidence is not reported. Upon such a record the findings of fact must be accepted unless self-contradictory, Wickwire Spencer Steel Corp. v. United Spring Co. 247 Mass. 565, 569, and the only question presented is whether the decree can lawfully enter upon the pleadings and findings. Gordon v. Borans, 222 Mass. 166. Sugden v. Marion Street Garage Co. 229 Mass. 130, 132. Fitzgerald v. Fitzgerald, 244 Mass. 61, 63. If upon any view the decree can be sustained the appeal must fail. There is nothing in Holyoke National Bank v. Dulitzky, 273 Mass. 125, or Weinstein v. Miller, 249 Mass. 516, the only cases cited and relied upon by the appellant, which affects or controls these rules of our law.

We see nothing self-contradictory or plainly wrong in the findings of fact. It was possible to conclude that the testator did not owe the note which was paid, and, in consequence, properly to disallow the item of payment by the executor.

It follows that the decree should be modified by the allowance of such costs and expenses of the guardian ad litem and next friend of Therese Gagnon as the judge of probate may deem proper, and as so modified should be affirmed.

Ordered accordingly.