SHEILA A. CUSACK & another
ANN T. CLASBY, personal representative.
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.
Foskett for the petitioner.
Present: Kinder, Neyman, & Desmond, JJ.
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. 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.
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." 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.
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. 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.
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).
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.
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