Choate v. Arrington, 116 Mass. 552

Choate v. Arrington

116 Mass. 552 | Mass. | 1875

Wells, J.

The case shows a breach of the conditions of the bond in not rendering an account when required by the Probate Court. The defendants were defaulted and judgment for the amount of the penalty of the bond should have been entered before reference to the assessor. It may be entered nunc fro tune.

For this breach of the bond, execution is to be awarded for the full value of all the estate of the deceased that has come to the hands of the executor, and for which he shall not satisfactorily account, as well as for all damages occasioned by his neglect or maladministration. Gen. Sts. c. 101, § 28, cl. 3, 4. The separa*556ti on of these two clauses would seem to leave the third — for a breach in not accounting — without any provision as to the amount for which execution is to be awarded. But reference to the original statute of 1786, e. 55, makes it clear that the provisions contained in the fourth clause must be intended to apply to the third also. The fourth is an additional clause inserted in the revision of 1836, as indicated by the notes of the commissioners to c. 70, § 10, for the purpose of greater precision, and not to change the law as it previously existed.

The purpose of awarding the execution in this mode is to put the whole assets of the estate, not already, disposed of and accounted for in a proper manner, into the control of the judge of the Probate Court, so that he may proceed with its settlement and direct the course of its further administration. He may remove the present administrator, and appoint another to take the proceeds of the execution and complete the administration; and the proceedings upon the bond in this court are sometimes suspended, in order to have that change made before the final award. Newcomb v. Williams, 9 Met. 525, 539. Bennett v. Russell, 2 Allen, 537, 541. But we do not regard that course as necessary, because the judge of the Probate Court may doubtless, if he sees fit, or if no application is made for removal of the executor or administrator, permit him to continue and complete the settlement of the estate; in which case the award of execution will determine disputed questions and also the amount for which he is to be held accountable from that time. Gen. Sts. c. 101, § 29. If the bonds already given are not sufficient security against future breaches, (see § 30,) new bonds may be required under § 15.

The surety is liable for whatever is properly chargeable to his principal in the oficial capacity on account of which the bond was given; and whatever is competent as evidence upon which to charge the principal is competent also against the surety. The inventory and the former account filed by the executor in this case were competent to show for what the executor ought to render an account, and therefore for what he and his surety were liable upon the bond. So too, evidence of the receipt of various sums of money as income of personal estate, and of any and all property which at any time had come or ought to have carre into *557his hands, was competent both against him and his surety. It was not necessary to show that it was in his hands when McCormick became surety, or at any time afterwards. If he has never properly disposed of and accounted for it, he is bound to account for it now; and the sureties upon his bond, whenever given, are held for his faithful performance of that duty. Dawes v. Edes, 13 Mass. 177. Winship v. Bass, 12 Mass. 198. Sigourney v. Wetherell, 6 Met. 553, 558. Mattoon v. Cowing, 13 Gray, 387, 390. Chenery v. Davis, 16 Gray, 89. Leland v. Belton, 1 Allen, 531. Alvord v. Marsh, 12 Allen, 603. Chapin v. Waters, 110 Mass. 195.

The property being shown to have belonged to the estate, or to have come to the hands of the executor at any time, the burden is then upon him, and thus upon the defendants in this suit, to account for it. If it is sought to recover damages occasioned bj the neglect of the executor to account at the proper time, or by other maladministration, the burden of proving such damages would be upon the plaintiff.

So far as the award of execution is for the value of estate not accounted for, there can be no separation of that estate or apportionment of damages. The statute requires the award to be “ for the full value of all the estate ” so unaccounted for. It gives this as the rule and measure, and1 there is no other. The result cannot be modified, therefore, by the fact of the previous bond; even if the other surety in that bond can be held bound after the discharge of his co-surety; or if there had been, before his discharge, such a breach of that bond as to render both of those sureties liable to be still held, under the Gen. Sts. c. 101, § 18, for damages on account of a part of the same assets to which this suit applies. Whatever contribution there ought to be between the sureties upon the several bonds must be sought, and the adjustments therefor can only be made, in a suit in equity.

The trustees appointed to hold and manage the residue of the estate, not having qualified themselves to act, the executor proceeded to collect the income, including rents of real estate. These he returned in his first account, credited to the estate, charging also for his expenditures on account of the real estate and on account of the maintenance of the widow and minor children, for whose use, in the first instance, it was so devised. The parties *558interested assented to the account thus rendered, the widow “ for herself and minor children; ” and it was allowed by the Probate Court. The executor thereafter continued to collect the rents ' until the trustees were ready to assume the charge of the trust estate. These facts make a case for requiring the executor to account for the income of real estate under the Gen. Sts. c. 98, § 8. Stearns v. Stearns, 1 Pick. 157. Palmer v. Palmer, 13 Gray, 326, 328. Almy v. Crapo, 100 Mass. 218.

It follows that the surety must be held responsible for the whole amount for which his principal ought to account. If the executor has not been, and is not to be removed, he will probably render such an account in the Probate Court as will obviate the necessity of the ultimate award and issue of execution. If not, the account should be so stated in this court as to answer the purpose .of an executor’s account, so far as to show what is included in it, as the basis of future adjustments with the executor and his sureties, and also to enable the court to determine how far interest should be charged upon the balance or any part of the account. For the purpose of a more formal statement of the account, and a restatement of the results, in accordance with this opinion, the case is Recommitted to the assessor.