Opinion
No. 11–P–169.
2012-10-16
Patricia J. POWERS & others, coexecutors, v. Beverly A. PRESCOTT.
By the Court (RAPOZA, C.J., MILLS
Justice Mills participated in the deliberation on this case prior to his retirement.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, Beverly A. Prescott, who appears pro se, appeals from a judgment entered in the Probate and Family Court allowing the first account and the second and final account of the coexecutors (the defendant's siblings) of the estate of her late mother, Georgia Ann Powers. The defendant essentially argues that the judge (1) erroneously shifted the burden to her to show that the coexecutors' actions were inappropriate; (2) erred by allowing both the first and the second and final accounts; and (3) abused her discretion by assessing and taking legal fees from the defendant's share of the estate. We affirm.
Burden of proof. The executor has the burden of proof to show that he properly has disposed of the money and property for which he is accountable. Compare Cleary v. Cleary, 427 Mass. 286, 290 (1998). Here, there is no evidence that the judge placed the burden on the defendant. The defendant had an opportunity to raise her objections to the inventory and the accounts, and the judge properly questioned the coexecutors. Nowhere in the record does it appear that the judge required the defendant to prove that the inventory or the accounts were inaccurate. Allowance of the first and the second and final accounts. The defendant claims that the judge erred by allowing both the first and the second and final accounts. We accept the judge's findings unless they are clearly erroneous. See Mass.R.Civ.P. 52(a), as amended, 423 Mass. 1402 (1996). “A finding [of fact] is ‘clearly erroneous' when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” Rood v. Newberg, 48 Mass.App.Ct. 185, 191 (1999), quoting from Marlow v. New Bedford, 369 Mass. 501, 508 (1976).
The judge determined that the actions of the coexecutors were fair and that the accounts were accurate. The judge also concluded that the evidence did not show the existence of any wrongdoing, fraud, or misrepresentation by the coexecutors. Even though the parties presented conflicting views respecting the accounts, “[i]f the trial judge makes one of several possible choices of what facts are supported by the evidence, the judge's choice is not clearly erroneous.” W. Oliver Tripp Co. v. American Hoechst Corp., 34 Mass.App.Ct. 744, 751 (1993). We conclude that the judge did not err in her findings or conclusions.
Legal fees. The defendant contends that the judge erred by assessing legal fees against her portion of the estate and by denying her (the defendant's) motion seeking $7,500 in legal fees and costs from the coexecutors. General Laws c. 215, § 45, expressly vests discretion in a probate judge to award, or shift, costs and fees “as justice and equity may require.” See Estate of King, 455 Mass. 796, 805 (2010). The degree of discretion is broad and “an award of costs and fees by a judge in the Probate Court under § 45 ‘may be presumed to be right and ordinarily ought not to be disturbed.’ “ Ibid., quoting from Smith v. Smith, 361 Mass. 733, 738 (1972). The defendant has failed to meet this heavy burden.
To the extent that the defendant raises other arguments in her appeal, they “have not been overlooked. We find nothing in them that requires discussion.” Department of Rev. v. Ryan R., 62 Mass.App.Ct. 380, 389 (2004), quoting from Commonwealth v. Domanski, 332 Mass. 66, 78 (1954).
We decline the plaintiffs' request for appellate fees and costs.
Judgment affirmed.