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Cusack v. Clasby

Appeals Court of Massachusetts, Middlesex

February 6, 2019

SHEILA A. CUSACK & another[1]
ANN T. CLASBY, personal representative.[2]

          Heard: December 10, 2018.

          Petition filed in the Middlesex Division of the Probate and Family Court Department on October 15, 2014. The case was heard by Maureen H. Monks, J.

          Michael H. Riley for the respondents.

          John Foskett for the petitioner.

          Present: Kinder, Neyman, & Desmond, JJ.

          KINDER, J.

         In this dispute involving the estate of Catherine P. Cusack, three of her children, Sheila Cusack, Karen Cusack-Bouvier, and Thomas Cusack, objected to the final accounting and settlement of the estate proposed by their sister and the decedent's personal representative, Ann T. Clasby.[3] A judge of the Probate and Family Court struck the objections, allowed the petition for complete settlement, discharged Clasby, and awarded attorney's fees to the estate. On appeal, Sheila Cusack and Karen Cusack-Bouvier (the objectors) claim that it was error to allow the petition for settlement before distributions to the heirs proposed by the petition had been made. Discerning no error, we affirm the decree and order allowing the petition.


         Catherine P. Cusack died on June 7, 2014, and is survived by eight children, who are equal heirs of her estate. On October 15, 2014, Clasby filed a petition for formal probate. On December 1, 2015, Clasby filed a petition for order of complete settlement on a preprinted form of the Probate and Family Court and requested that the judge "[c]onsider the First and final account(s) and approve said accounting(s), distribution of assets, and adjudicate a final settlement of the estate."[4] The objectors filed objections, claiming that Clasby's proposed final account represented that distributions to the heirs had been made, when in fact they had not.

         Clasby filed a motion to strike the objections as ones not permitted under the Massachusetts Uniform Probate Code (MUPC). The objectors countered with a motion for summary judgment and for attorney's fees in which they repeated the argument made in their affidavits of objection. The judge denied the motion for summary judgment, reasoning that payment could not be made until the final accounting was approved. The judge stated her intention to assess attorney's fees against the objectors, and she further ordered that "[t]he distributions to the heirs as required in the final Decree shall be made immediately upon the issuance of that Decree." On January 26, 2017, the judge issued a written memorandum of decision and order (1) striking the objections, (2) directing Clasby to file a new motion for attorney's fees, and (3) ordering Clasby to file a proposed final decree after the issue of attorney's fees had been resolved. On March 16, 2017, the judge ordered each of the objectors to pay $1, 237.50 in attorney's fees to the estate.[5] On December 20, 2017, a decree and order entered (1) allowing the final accounting and complete settlement and the distributions stated therein, and (2) discharging the personal representative. This appeal followed.


         We review motions to strike objections de novo, accepting as true the factual allegations contained in the objecting party's affidavit. See Baxter v. Grasso, 50 Mass.App.Ct. 692, 694 (2001). The objections in this case present a question of statutory interpretation which we also review de novo. Guardianship of B.V.G., 474 Mass. 315, 320 (2016).

         Prior to the enactment of the MUPC in 2008, the settlement of testamentary estates was governed by G. L. c. 206, § 22. Under the case law interpreting that statute, the personal representative of an estate could not petition for complete settlement until all payments had been made by the estate. See Bell v. Swift, 322 Mass. 145, 149 (1947), citing Grigaliunos v. Frost, 270 Mass. 455, 458 (1930) ("it is for payments and not appropriations for payment that an accountant may rightfully demand allowance"). The objectors claim that this body of law survived enactment of the MUPC and precluded the judge from allowing final settlement of the estate and discharging the personal representative before distributions to the heirs had been made. We disagree.

         General Laws c. 206, § 22, was repealed when the MUPC was enacted. See St. 2008, c. 521, § 38. While the MUPC did not replace all common-law principles concerning the affairs of decedents, it replaced those "displaced by [its] particular provisions." G. L. c. 190B, § 1-103. Under the MUPC, G. L. c. 190B, § 3-1001, controls the settlement of estates, and, pursuant to § 3-1001 (a.), a personal representative seeking an order for complete settlement may now "request the court . . . to consider the final account, [or] compel or approve an accounting or distribution or both." Thus, the plain language of the MUPC authorized Clasby to request both the approval of an accounting and a distribution of the estate. See G. L. c. 190B, § 3-107 ("petitions for formal orders of the court may combine various requests for relief in a single proceeding if the orders sought may be finally granted without delay"). Likewise, the court was authorized to "enter an order or orders, on appropriate conditions, . . . approving settlement and directing or approving distribution of the estate." G. L. c. 190B, § 3-1001 (b). As nothing in the MUPC prohibits a personal representative from requesting, or a judge from ordering, the simultaneous approval of a proposed final settlement and a distribution consistent with that proposed settlement, we see no error in the judge's ...

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