Blakeman v. Sherwood, 32 Conn. 324

Blakeman v. Sherwood

32 Conn. 324 | Conn. | 1865

Hinman, O. J.

Previous to the statute of 1848, requiring *328the plaintiff in actions on prohate bonds to set forth for whose special benefit the action is prosecuted, and how such persons are interested in the same, and how the act or neglect of the defendant has injured their rights or affected their interests, this action would have been held to be properly brought and correctly disposed of by the superior court. The case of Minor v. Mead, 3 Conn., 289, is identical in principle with the case as it would then have stood, and that case has been acted upon as established law ever since. Rowland v. Isaacs, 15 Conn., 115. When the whole penalty of a bond is forfeited by the breach of some of its conditions, a defendant ought not to object to the statutory" rule of an assessment of such damages “ as are justly and equitably due.” The question in the case, therefore, is narrowed down to a mere question as to the object and effect of the act of 1848. Rev. StaL, tit. 1, sec. 101. An administrator’s bond is the security by which persons interested in the estate have it in their power to enforce the discharge of duty by the administrator, and practically a suit upon the bond is the only mode of recovering the damages caused to parties in interest by a breach of this duty. Now' the legislature never intended to impair at all the efficiency of this remedy so far as it might properly be used for this beneficial purpose; but the evil aimed at by this statute consisted in the bringing of actions for some nominal and technical breach of a probate bond, and subjecting a party to vexation and cost, where there was no substantial or real injury to any one to be redressed. It often happened also where there were doubtful claims against an estate, that a party having such a claim was able to find that there had been some merely technical breach of the bond, of no real injury to any one, •consisting perhaps in an omission to return an inventory until a few days after the limited time for that purpose had expired, and was thus able in a suit upon the bond, by taking advantage of such merely technical breach, to try his chance for a recovery for his doubtful claim principally at the expense of the defendant, when he would himself have been unwilling to risk the expenses of a law suit on such a claim, if he was sure of being subjected to costs if lie failed to recover it. To some *329extent therefore, the law as it stood before the enactment of this statute might be said to encourage needless litigation, and this we think was the principal evil the legislature intended to correct. The requirement that the name of the party for whose special benefit the action is prosecuted shall be set forth, was not intended to make any change in the parties to the cause. The action is still to be brought in the name of the judge of probate, who, if he recovers, is a trustee for the parties really interested, as was always the case. It was claimed that this provision placed the plaintiff’s right of recovery in the same condition as if the parties for whose benefit the suit is brought were themselves the plaintiffs upon the record, and consequently that any thing that shows that these parties had not a strict legal title at the time to the specific property for which damages are sought to be recovered, will defeat the action. But we are satisfied that the legislature never contemplated any such result, and that nothing was further from their intention. To require that the persons for whose benefit the suit is brought should have a legally vested interest in the subject matter, and an immediate right to the possession of the property for which damages are sought to be recovered—in this case a right as heirs in the same manner as if the property had been distributed to them under orders of the probate court—would very greatly impair the usefulness of the probate bond as a rneaug of enforcing the settlement of estates. Judges of probate would be very reluctant on their own account to institute suits, and if heirs could not do it before distribution in cases like this, where the administrator refuses to return any inventory whatever, there would be great danger of an entire failure of justice. The legislature were aware of the course of decisions commencing with the case of Minor v. Mead, and did not, as we think, intend to change the law established by them, except to the extent and for the purpose we have indicated. The language of the statute is fully answered by the construction which we give to it, and persons having an ultimate interest in estates, either as heirs, devisees or creditors, may cause estates to be properly settled by instituting suits on probate bonds, either for a neglect to *330inventory estate in which they have such ultimate interest, or for a neglect to settle an administration account, or for any other neglect of duty which may work a substantial injury to them. We have no doubt therefore that the right of an heir, devisee or creditor, constitutes a sufficient interest for the prosecution of a suit upon a probate bond, although such right has not been definitely fixed or adjudicated upon by orders or decrees of the probate court determining the precise amount of the respective interest. And we are therefore of opinion that the declaration is sufficient, and that both the motion in arrest and that for a new trial should be overruled.

It was said that, as the property in this case consisted of choses in action, it was not necessary that it should be inventoried under the statute; but this is incorrect, as our present statute expressly requires an inventory of the choses in action as well as of other property. Rev. Stat., tit. 14, sec. 28.

If we are correct in holding that the neglect to return an inventory was such a breach of the bond as enables an heir to the estate to prosecute a suit on the bond in the name of the judge of probate, although his precise interest as heir has not been definitely settled, either .by the settlement of the administration account or by an order for distribution, then it follows that the full value of the property thus withheld from the inventory was the correct rule of damages in the case. It is not for the defendant to inquire what is to be done with the damages recovered. The estate is the loser to the precise extent of'the property withheld ; and that should be made good. If any equitable circumstances existed which would go to show that the loss to the estate was less than the full value of such property, it was for the defendant to show it.

We advise that the motion in arrest be overruled, and that a new trial be not granted.

In this opinion the other judges concurred, except Park, J., who having tried the case in the court below did not sit.