319 Mass. 624 | Mass. | 1946
These are three actions against the principal and surety on the bond of the defendant Sauer as administrator of the estate of Philip Wuest, late of Wellfleet.
The decisive facts relative to the principal controversy may be shortly stated. Each of these actions is brought for the benefit of a general creditor of the deceased who recovered judgment against the defendant administrator on'Novem
The judge “directed a verdict for the plaintiffs in the penal sum of the bond, but with actual damages for the amount of the judgments and costs.” We construe this to mean that after directing a verdict for the plaintiff in each action for the penal sum of the bond the judge either directed the jury as to the amounts for which executions should issue or himself determined those amounts. In a proper case in an action upon an administrator’s bond the judge may either himself determine the amount for which execution should issue or he may submit that question to a jury. G. L. (Ter. Ed.). c. 205, § 31. Defriez v. Coffin, 155 Mass. 203. McIntire v. Conlan, 223 Mass. 389, 390.
But in this case the judge was in error in fixing the amounts for which executions should issue at the amounts of the judgments. Final adjudication of the insolvency of an estate is a complete defence to the administrator and his surety to any claim of breach of his bond in failing to satisfy
There was, however, a breach of the third condition of the bond which required the administrator to “render upon oath a true account of his administration at least once a year,” unless excused by the court. G. L. (Ter. Ed.) c. 205, § 1 (2), Third. The administrator rendered no account for five years — not, in fact, until after these actions were brought. See Loring v. Kendall, 1 Gray, 305, 313-314; Forbes v. Keyes, 193 Mass. 38, 42; Chase v. Faulkner, 307 Mass. 404, 406. The docket entries do not show that he was excused. This breach is alleged in the declarations. Because of it there was no error in directing verdicts for the penal sum of the bond. But the measure of damages for breach of the bond in failing to account is “the full value of all the estate of the deceased which has come to the hands of the executor or administrator and for which he does not satisfactorily account,” and “all damages caused by his neglect or maladministration.” G. L. (Ter. Ed.) c. 205, § 31, Third. So far as appears the administrator has satisfactorily accounted for all of the
The exceptions are sustained. Although several different actions may be brought upon the same administrator’s bond, G. L. (Ter. Ed.) c. 205, §§ 20, 21, 22, 23, judgments should not be entered against the principal and surety aggregating any larger amount than the penal sum of the bond. In accordance with the suggestion in Harmon v. Sweet, 221 Mass. 587, 599, judgment is to be entered for the plaintiff in any one of the actions with an order that no execution issue for any breach declared upon in any of the actions; and the other actions are to be dismissed.
So ordered.