300 Mass. 270 | Mass. | 1938
Mary E. Dudley died October 2, 1926, intestate, leaving no husband, and, as her heirs and next of kin, four daughters and one son. One of the daughters, E. Gertrude Dudley, was appointed and qualified as administratrix on December 27, 1929. From a decree allowing her amended first account for .the period beginning December 27, 1929, and ending September 5, 1935, another daughter, Chlora R. Pulsifer, and the son, Burton E. Dudley, appealed to this court. The case comes before us with a report of material facts by the judge and a report of the evidence.
The inventory shows no personal estate, and real estate in 'Wakefield appraised at $2,600. By schedule A of the account before us the administratrix charges herself with personal property, $67.50, and “Amounts received from income gain on sale of personal property over appraised value, and from other property, as follows: 1 Rec’d from
The appellants contend that the items included in schedule A, other than the item of $67.50, are improperly included therein, that item 13 of schedule B — $100 for “attorneys’ fees connection with probate” — is excessive, that item 14 — $200 for the services of the administratrix — should not be allowed because of maladministration of the estate, that items 2 to 5, 15 to 18, and 20 to 25, which are expenditures in connection with the real estate in Wakefield, including taxes for the years 1928, 1929, 1931 and 1932 (aggregating $348.07), fire insurance ($24.60), interest on the mortgage ($40.50), paying off the mortgage ($651), expenses of foreclosure and sale ($115.60), expense of sale of property ($19.50), and expenses of defending a suit in equity brought by Burton E. Dudley, in which he attacked the foreclosure sale, ($300) and of prosecuting an action for rent ($145) and an action of ejectment against said Burton E. Dudley ($347.90) are not properly chargeable to the estate.
The real estate was owned by the intestate at her death subject to a mortgage. The equity in such real estate passed to her heirs and not to the administratrix, subject, however, to liability for the payment of debts and charges of administration if, as was the fact, the personal property was insufficient for such payment. Evidently this was a proper case for the granting of a license to sell the real estate to pay such debts and charges. See G. L. (Ter. Ed.) c. 202, §§ 1-20. No such license was granted. Though a petition for such a license was filed, it was not pressed. But a different method of disposing of the real estate was followed by the administratrix.
The ground of the appellants’ objections to the allowance of the account is primarily the method adopted by the administratrix for disposing of the real estate. As such administratrix — though she was also one of the heirs at law and next of kin — she was bound to act in good faith solely for the interests of the estate and could not properly derive any personal advantage for herself adverse to those interests. Hayes v. Hall, 188 Mass. 510, 514. Taylor v. Jones, 242 Mass. 210, 215. Vinal v. Gove, 275 Mass. 235, 241-242. Even if the administratrix, as well as the heirs, had the power to redeem (see G. L. [Ter. Ed.] c. 244, .§ 33; Williams v. Van Dam, 246 Mass. 61, 63), she had no assets of the estate available for that purpose. Consequently she was not precluded from purchasing the mortgage and taking an assignment thereof which would not effect its discharge, if her acts in so doing were not injurious to the estate and she accounted fully for any profit derived from the transaction. Sanderson v. Edwards, 111 Mass. 335, 337, 338. Morse v. Bassett, 132 Mass. 502, 509. See also Vinal v. Gove, 275 Mass. 235, 241. And the facts found by the judge, which are not plainly wrong, show that the administratrix, through her representatives, purchased — not redeemed — the mortgage and that such purchase was in good faith and beneficial,, rather than injurious, to the estate, and was not in violation of the rights of any person interested therein. Moreover, the administratrix is attempting, in this account, to account fully for any profit derived from such purchase of the mortgage, the foreclosure thereof, and the resale of the real estate purchased by her at the foreclosure sale.
In the light of the law and facts above outlined we consider the specific items in the account. Though no license to sell the mortgaged real estate for the payment of debts and charges of administration was obtained (G. L. [Ter. Ed.] c. 202, §§ 1, 2), the administratrix — or her representatives — as assignee of the mortgage, had power, by
By purchasing the real estate, at the foreclosure sale the administratrix, or her representatives, acquired legal title thereto. But for the fiduciary relation of the administratrix to the estate, and to the persons interested therein, she would have obtained an absolute title to such real estate. By virtue of her legal title, however, she had the power to deal with the real estate as her own, subject to any equities in favor of the estate or of any person interested therein. See Sanderson v. Edwards, 111 Mass. 335. As owner of the legal title she could transfer such title to a purchaser without obtaining a license to sell the real estate, subject, however, to any equities which might continue to attach thereto in the hands of the purchaser. The administratrix has made such a transfer, which has not been set aside, and, so far as the record discloses, could not be, even if the validity of the purchaser’s title was open to attack in this proceeding. See, however, for cases in which the validity of the foreclosure sale was drawn in question, Barry v. Dudley, 282 Mass. 258; Sheehan Construction Co. v. Dudley, 299 Mass. 48; S. C. 299 Mass. 51. The proceeds of such resale, however, in the hands of the administratrix, to the extent of any profit for which she is bound to account, by reason of her fiduciary relation to the estate, stand in place of the real estate acquired by her at the foreclosure sale “subject to all the obligations and trusts to
The amount received from resale of the real estate ($700) represents the gross amount received on such resale in excess of the amount paid by the administratrix, or her representatives, at the foreclosure sale. However, in determining the profit actually -received by her the reasonable expense of such sale ($19.50) must be deducted. Furthermore, the facts found import that the expenses incurred by the administratrix .in prosecuting the action of ejectment ($347.90) and in defending the .suit in equity in which the foreclosure was attacked ($300) were incidental to the disposition of the real estate in accordance with the method which it was necessary for the administratrix to adopt "in order to get the best possible price for said property,” and, therefore, properly deductible from the amount received by her from the resale of the real estate in order to determine the profit derived from such resale.
• The rents included in schedule A ($334.70) were rents collected for the period during which she had legal title to the real estate. For this reason, if not for others, they were properly collected by her. But they represent a profit derived by her from the transaction. as a whole, for which
The other items in schedule B of the account require no discussion. They were of a kind proper for allowance and the finding that they were “fair and reasonable” was not plainly wrong.
It follows from what has been said that the amount stated in schedule C of the account as on hand ($258.43) is accurate except as it is increased by the amount of the payments for taxes disallowed, aggregating $159.02. It is
The decision in this case is supported by the facts disclosed by the record, but a method of disposition of real estate such as Was adopted by the administratrix is not ordinarily to be approved as proper.
The decree of the Probate Court must be modified by providing therein that the account be amended in schedule B by disallowing the payments shown therein for 1928 and 1929 taxes, aggregating $159.02, and making a corresponding decrease in the total amount of this schedule, and amended in schedule C by making a corresponding increase in the amount on hand to $417.45, and that the account as so amended be allowed. The decree as so modified is affirmed.
Ordered accordingly.