146 Mass. 366 | Mass. | 1888
Joel Holbrook executed a bond to his mother, Ruth, conditioned for her support, and afterwards died in her lifetime. Lemuel Clark was appointed his administrator, and on Ruth’s petition was ordered to retain the money remaining in his hands, namely, $710.45, for her support, unless bond was given to expend the same in support of her if necessary. Lydia Holbrook, guardian of Joel’s only child, Flora, thereupon gave bond. The sum was expended for the purpose mentioned, but was not sufficient. Ruth died, Clark was appointed her administrator, and the question which is intended to be presented, and which counsel desire us to consider, is whether, as such administrator, he can reach the real estate of Joel in a suit against Joel’s heir.
The fact that Clark, when appointed administrator of Ruth, the obligee, was already the administrator of Joel, the obligor, did not extinguish the bond, nor prevent a suit by Clark against Joel’s heir for whatever sums Clark could not have appropriated to Ruth’s support as Joel’s administrator. Y. B. 12 Hen. IV. 21, pl. 11. Woodward v. Darcy, Plowd. 184, 185. Wankford v. Wankford, 1 Salk. 299, 304. See Cock v. Gross, 2 Lev. 73; S. G. 3 Keb. 116, and 1 Freem. 49.
We are of opinion that Clark’s right to proceed against Joel’s heir was not extinguished by what took place in the Probate Court. Assuming that § 8 of the Gen. Sts. c. 97, (Pub. Sts. c. 136, § 13,) applies to such a case as this, that section looks to the executor’s retaining assets already in his hands. It does not contemplate the court’s ordering him to sell real estate to meet the liability when it shall accrue. Still less does it contemplate such a sale to meet the chance of a liability which may never be incurred. Therefore it is not intended to bar a resort to the real estate in case the personal estate is retained and exhausted.
Turning to the sections which regulate the liability of heirs, the right to recover against them is given by the Gen. Sts. c. 101, § 32, to “ a creditor whose right of action accrues after
Whatever might have been the effect if a bond had been given for the payment of the demand, as provided in Gen. Sts. c. 97, § 8, in this case, according to the bill, the bond was only to expend the $710.45 for Ruth’s support. That has been done, the condition of the bond has been satisfied, and whether or not a claim the existence of which is contingent on the claimant’s remaining alive is within the provisions of § 8, and whether, if that section applied, it was followed or not by giving such a bond as is alleged to have been given, the parties now stand exactly as if no bond had been given, and the money had been retained and spent.
There are some defects in the proceedings which will make it necessary to sustain the demurrer; but as they seem to be only formal, they may be cured by amendment. The plaintiffs and their several causes of action are improperly joined; and Clark, the principal plaintiff, has no standing in equity. Clark’s claim is a right to sue at law upon the bond. The liability of heirs is now governed wholly by statute. Grow v. Dobbins, 128 Mass. 271. Grow v. Dobbins, 124 Mass. 560. Hall v. Bumstead, 20 Pick. 2. Royce v. Burrill, 12 Mass. 395. But, as at common law, it is a liability upon the contract of their ancestor. Valentine v. Farnsworth, 21 Pick. 176. Russ v. Alpaugh, 118 Mass. 369, 379. Gen. Sts. c. 101, §§ 31 et seq. Pub. Sts. c. 136, §§ 26 et seq. See Noreross v. James, 140 Mass. 188, 189. In this case there is only one person liable for the debt, and there
Again, Clark’s right is only to recover the amount reasonably necessary for the “ convenience, comfort, and necessity ” of Ruth so long as she lived, in excess of what has been paid by Joel’s estate. The bill does not allege in terms that any sum above what was paid was necessary. The debts incurred by Ruth, and alleged to be due, may or may not be evidence of the amount necessary for her support, but they are nothing more.
Demurrer sustained.
