# Mahoney v. Mahoney

> Massachusetts Appeals Court · December 19, 1977 · 5 Mass. App. Ct. 720

URL: https://www.frixlaw.com/law-library/cases/9742933

## Case

- **Full name:** Douglas S. Mahoney vs. Anne E. Mahoney & Others
- **Court:** Massachusetts Appeals Court
- **Decided:** December 19, 1977
- **Citations:** 5 Mass. App. Ct. 720; 370 N.E.2d 1011; 1977 Mass. App. LEXIS 705
- **Precedential status:** Published
- **Opinion:** Concurrence by Keville
- **Judges:** Hale, Keville, Goodman, Grant, Armstrong, Brown
- **Cited by:** 10 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

Keville, J.
(concurring). Although I concur in the result reached by the majority, I disagree in part with the path followed in arriving at that result.
First, the docket, the original papers and the briefs support the plaintiff’s representation, not disputed by the defendant, that the allowance of the defendant’s motion to modify the temporary injunction, thus paving the way for the bank merger, took place without notice of a hearing and without the presentation of evidence or argument. It appears that the only notice given with respect to the motion was on October 3, 1975, after it had been allowed.
Second, when the motion was filed, and when it was allowed, the defendant lacked standing to bring it. Not only had she not qualified as a trustee under the will (see *728 2 Newhall, Settlement of Estates § 410 [4th ed. 1958], and cases cited therein), but the judge, who allowed the motion, had already determined that the defendant held the assets of the estate, including the bank stock, as a constructive trustee; and he had ordered her to hold all of the assets for the purpose of transferring them to a trustee of the testamentary trust. In the disposition of the motion it would appear that no account was taken of the provisions of G. L. c. 203, §§19 and 23.
Third, I disagree with the view of the majority that the allowance of that motion was interlocutory, and that, therefore, the plaintiff’s appeal from its allowance is not properly before us. One of the “essential purposes” of the testator in establishing the trust under his will was to provide for the continued operation of the Park National Bank in which he held the controlling interest. The record demonstrates his intention that control of the bank should remain “in the family” after his demise. As the majority opinion points out, the will provides that the trustee, in the event that Stephen were not interested in running the bank, is to give Douglas a chance to demonstrate his ability to assume a responsible position in the bank’s operation, and that the trustee, in her discretion, could vote the bank stock to that end.
The judge’s allowance of the defendant’s motion to modify the temporary injunction thus permitted the defendant to effectuate a merger with a larger bank and gave the defendant leave to frustrate the testator’s expressed intent and to vitiate one of the salient provisions of the trust. See and compare Mazzola v. Myers, 363 Mass. 625, 635, 638 (1973). In my view the allowance of the motion was, in substance, a final decree in so far as it concerns the plaintiff; and his appeal from the allowance is, therefore, properly before us. Cummings v. Tolman, 292 Mass. 58, 60 (1935). General Heat & Appliance Co. v. Goodwin, 316 Mass. 3, 5 (1944). Vincent v. Plecker, 319 Mass. 560, 583 (1946). Jefferson v. Flynn, 348 Mass. 165, 166 (1964).
However, although the plaintiff filed a motion in the Probate Court under Mass.R.A.P. 6(a), 365 Mass. 848 (1974), to stay the modification of the temporary in june *729 tion for the purpose of restraining the substitution of the Western Bank & Trust Company shares for those of the Park National Bank, he failed to press his application for a stay or to comply with other requirements of that rule, or to seek relief under the provisions of G. L. c. 215, § 23. Neither did he elect to appeal from the final judgment, which was subsequently entered in the case, although in connection with that judgment the probate judge had made a finding that the principal purpose of the trust would not be affected by the exchange of shares of the two banks which was negotiated pursuant to the modification of the temporary injunction. On the basis of the record before us, I agree that the judge’s modification of the injunction should not be disturbed.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9742933. Public record. Not legal advice.