Weiss v. Weiss , 354 Mass. 761 ( 1968 )

The petitioner, son of the testator M. Murray Weiss, seeks the removal of Mrs. Nancy Weiss as cotrustee of a testamentary trust established for the benefit of Henry and Henry’s children. The other trustee is a corporate fiduciary. Mrs. Weiss is the testator’s widow and the stepmother of Henry. The petition alleges that Mrs. Weiss was hostile to Henry and unsuitable as cotrustee, and was unreasonable in withholding approval of expenditures relating to the education of one of Henry’s two children. Under the will the trustees were given discretionary power to apply the income of the trust to educating Henry’s children, their “decision . . . to be final and binding on all persons.” The judge made extensive findings of fact and dismissed the petition. Henry appeals. The evidence is reported. The issue is whether the judge was plainly wrong. Malone v. Walsh, 315 Mass. 484, 490. His ultimate findings were that (a) Mrs. Weiss is acting in a good, sound, discretionary manner, (b) she is working for the best interest of all concerned, and (c) if there is any hostility it comes from Henry and not from Mrs. Weiss. A reading of the transcript shows that findings (a) and (b) are supported by the evidence and are not plainly wrong and that finding (c) more precisely should be that such hostility as exists between Henry and Mrs. Weiss originated with Henry after his father’s death and is shown mainly by him. The factual situation is totally unlike that detailed in Cooney v. Montana, 347 Mass. 29. The evidence and the findings bring the case within the principles discussed and applied in Shirk v. Walker, 298 Mass. 251, 259, 260. Costs of appeal may be awarded by the Probate Court.

Decree affirmed.