110 Mass. 195 | Mass. | 1872
The debt due upon the note from the executor to the estate was assets in his hands, for which he and his sureties were responsible, in like manner as if he had received it from any other debtor of the deceased. Stevens v. Graylord, 11 Mass. 256, 269. Leland v. Felton, 1 Allen, 531. The case finds that in all the proceedings of the executor, in the course of his administration of the estate, no notice was taken of this note. The amount necessary to be raised by a sale of real estate, in order to make up for the insufficiency of the personal estate to pay the debts and legacies, is computed exactly as if no such note were in existence. The effect of this mode of proceeding was wrongfully to deprive the devisee of a portion of his inheritance. At the time of the first petition for leave to sell real estate, the executor owed the estate an amount more than sufficient to pay all the remaining debts represented by him to be due, and there was apparently no necessity for any sale of real estate whatever. He was guilty, therefore, of a breach of his bond, as in this respect he did not administer according to law and the will of the testator.
The proceedings under the second petition were of the same general character. There was the same false representation as before of the condition of the estate, and the like suppression of the material fact that there were already personal assets in his hands, unaccounted for, nearly sufficient to pay all the debts and legacies in full, without interfering with the real estate at all. It is insisted that there was still a deficiency to be made up, but tins suggestion, if well founded in fact, does not affect the case. The fact remains that the real estate was incumbered more than it lawfully should have been with the payment of the debts, and the inheritance of the devisee was wrongfully diminished.
Under the license obtained upon this second petition, the exec - utor made an additional sale, and executed and delivered a deed to the purchaser, Morse. It is said that upon this sale nothing was ever paid to the executor; that the sale itself was a mere
In such a state of things, the executor, if he were himself a party defendant in this smt, would be estopped to defend himself on the ground that the sale was a sham. Jennison v. Hapgood, 10 Pick. 77, 100. He would be bound by his representations as to the necessity of making the sale ; and by the fact that he did sell accordingly, and that he made and delivered a deed to the purchaser. Heirs or devisees are not to be prejudiced by Ms neglect to receive the consideration. He cannot excuse Mmself, upon such a charge of maladministration, by leaving the injured parties to take the doubtful chance of vacating the sale wMch was wrongfully made, by a suit at law against the purchaser. So far as it is a question between the executor and the party for whose benefit tMs suit is brought, she has a right to consider the sale, however wrongfully and improperly made, as a sale in fact, and as a violation of the official bond of the executor, for wMch he and Ms sureties are jointly and severally liable. The authorities cited by the defendant as to the conclusiveness of probate decrees do not apply to this case. As there were debts to justify it, the decree licensing the sale of real estate cannot be set aside to the injury of a bona fide purchaser ; but the misconduct of the executor in obtaining the decree, and rendering it necessary, is open to investigation in a suit upon his bond.
Upon the facts contained in the report, there can be no doubt that the executor has violated the condition of his bond; that Mary M. Titus is aggrieved by Ms failure to perform Ms duty
Upon the question in whose name, in what manner and for what sum execution should be awarded, there is some obscurity in the statute. Under, the St. of 1786, c. 55, it was held that after the judge of probate had obtained judgment on the bond for a breach of the condition, the court might award execution to any one who should satisfactorily prove that he was entitled to an indemnity out of the penalty of the bond. Thus Si Paine v. Grill, 13 Mass. 365, where an indefeasible estate in land had been devised, and, by the negligence or wilful refusal of the executor to pay the debts of the testator according to the condition of the bond, the land so devised had been taken by creditors, and the devisee’s estate therein was defeated, it was held that he had a
It is to be observed also that the statute makes no direct provision as t(3 the means of enforcing the payment of a legacy, even in cases where an executor gives bond “ for the payment of debts and legacies.” It is well settled that such a bond is an admission of sufficient assets for that purpose ; Jones v. Richardson, 5 Met. 247 ; and that a failure to pay a legacy would be a breach of the bond. In Fay v. Taylor, 2 Gray, 154, it was held, in a suit upon
We have then a case in which the executor has plainly violated the condition of his official bond, and has been guilty of unfaithful administration. The defendant was a surety for the executor, and responsible for his faithful performance of his duties as such. The party for whose benefit this suit is brought has suffered a loss which is the direct result of this unfaithfulness on the part of the executor. Her only effectual remedy is to be obtained by a suit upon the bond in the name of the judge of probate, for her benefit. We are of opinion that the suit can well be maintained, that judgment must be rendered for the penalty of the bond, and that execution must issue for the amount of damage which she has sustained, to be determined by an assessor, who is to ascertain and report to the court the value of her interest in the estate sold, at the time of the sale, and in the condition in which it then was.