Van Dyke v. Conkey

MOORE, P. J. —

Appeal by the deposed executrix from an order sustaining the objections of a pretermitted heir to her final account, disallowing the account and requiring said executrix to render a further, full and complete account of her administration.

On October 14, 1935, appellant applied for letters testamentary in the estate of her deceased mother, Annie Wood Conkey. In her petition, she alleged: “Petitioner is informed and believes that there is a distributable share in a trust of which the Old Colony Trust Company, Boston, Massachusetts, is trustee, under which Annie Wood Conkey, sometimes known as Annie Conkey, if living, would be entitled. The exact amount of this distributive share petitioner is not now informed.”

There was no reason for appellant to qualify as such executrix except to receive from said Old Colony said distributive share for the estate of her deceased mother. The latter had departed this life more than ten years prior to the filing of said petition. Appellant was duly qualified and on November 24, 1936, filed an inventory in which she stated the following : “Amount of money received from the James Barton Wood trust, $7,210.00. As to all of this amount said administratrix Florence A. Van Dyke is not now certain that all of it belongs to the estate of decedent, but anticipates

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ascertaining shortly for certain whether or not it does, or how much of it does.”

On January 20, 1936, she approved a claim filed by her husband in the sum of $6,000 and it was allowed by the court October 9, 1936. On receipt of the money in June of 1936, she deposited it in her personal account. She then opened a bank account as executrix in which she deposited $1200 of the same money and out of the latter account paid $62.48 on bills of the estate. Also, she paid her husband’s claim.

It appears that one James Barton Wood, father of decedent, in his lifetime, created a trust estate with the said Trust Company as trustee for the life benefit of Miriam Wood, with the remainder to others named. The said Miriam having deceased, the said Trust Company petitioned the probate court of Suffolk County, Massachusetts, for a decree distributing the remainder of the estate to the remaindermen named in the trust indenture. Pursuant to said petition, a decree of distribution was made and that part of the decree dated June 18, 1936, pertinent to this case reads as follows: “And that the following persons are entitled to said trust estate in the proportions specified as follows: . . . Florence Van Dyke, who is entitled by will of Annie Wood Conkey, who, as one of the said remaindermen, was entitled to a one-sixth interest — 1/6—3 6/216. ”