Dudley v. Sanborn, 159 Mass. 185

159 Mass. 185 | Mass. | 1893

Holmes, J.

This is an appeal by all parties interested from a decree of the Probate Court upon the first and final account of the administratrix of the estate of Albion J. Dudley. The main questions are whether the administratrix shall be allowed an item of $900, charged as a loss on twenty shares of the Belvidere Woollen Company (schedule B, No. 99), and one of $1,400 charged as a loss on two $800 mortgages of the Kansas Farm Loan and Trust Company (No. 100). The facts in brief, as found by the master, are as follows. The administratrix is the widow of the deceased, and is entitled to one half of his personal estate. She desired to take one half of certain stocks and bonds belonging to the estate in specie, including those above mentioned. The distributees refused assent. Thereupon she sold ten of the twenty shares and one of the mortgages at public auction, after proper advertisement, for a price which was fair, but below the appraised value, bought them in herself, took tlie other ten shares and the other mortgage as her own, charged herself with them at the auction prices, and now asks to be allowed the differences between these prices and the appraised values which are the losses in question. At a later date the distributees elected in writing to hold the administratrix liable for the value of the stock and bonds in money.

We are relieved from considering what otherwise would have been the rights of the widow and administratrix by the election just mentioned. See Marvel v. Babbitt, 143 Mass. 226 ; Pierce v. Gould, 143 Mass. 234, 235 ; Mechanics’ Savings Bank v. Waite, 150 Mass. 234, 235; Reed’s estate, 82 Penn. St. 428. There is no doubt that the interested parties could confirm the sale. Litchfield v. Cudworth, 15 Pick. 23, 31. Yeackel v. Litchfield, 13 Allen, 417, 419. Their election once signified was final. Raphael v. Reinstein, 154 Mass. 178, 179. Therefore the transactions in question must be taken to have been legal. The only question is how the value of the stocks and bonds is to be fixed. The distributees claim the right to charge the administratrix with the appraised value, where, as in the items mentioned, that was greater than the auction price. But we see no reason for such a claim. She is to be charged with the actual value of the property at the time when she took it. The appraisement is not conclusive as to that. Pub. Sts. c. 144, § 3; Mead v. Byington, 10 Vt. 116, 121. A fair auction sale is better evidence. As to the ten shares of the Belvidere Woollen Company actually sold, we think that there can be no question. As to the ten kept, it is suggested that if sold they might have brought a different price. But, according to the common experience, when equal small lots of the same stock are sold at.the same time the variations are not likely to be large, and we see no sufficient reason for not accepting the sale as a criterion.

As to the mortgages, the report is not so full as we could wish. But we understand that both were issued, or at least were guaranteed, by the Kansas Farm Loan and Trust Company. If they were bonds issued by the company and secured by the same mortgage, of course their values were equal. If they were private notes secured by different parcels of land and guaranteed by the company, theoretically they might have very different values. But they were for small sums, and the public here would not be likely to inquire into the details of the real estate mortgaged, or to go beyond the general reputation of the company which took the mortgages in the first instance. Practically, the standing of the mortgages in a Massachusetts market would be determined by the standing of the company which guaranteed them. If, when the single justice comes to consider the decree to .be framed, he shall see reason to suppose that the master’s report ought to be recommitted on this question, he will order it tobe; but as we understand the facts, we are of opinion that the two mortgages properly may be assumed to be of equal value. On the same understanding we regard the sale as a sufficient test of the value. The master finds that the one sold probably was worth no more than it fetched, and is not satisfied that the other was worth more than the sum at which it was reckoned in the account.

The principles which we have laid down dispose of the items of this class. (Nos. 97, 98, and 101.) The administratrix has charged herself with interest on the price of the stocks and bonds taken by her from the time of the taking. Of course she is entitled to keep the dividends paid since that time.

The only other item in question of any size is a charge of $600 for erecting a monument to the deceased (No. 105). The administratrix had obtained leave to spend that sum for the erection of a monument, etc. “on the burial lot of said intestate,” but afterwards, preferring that he should be buried elsewhere, bought another lot with her own money, moved her husband’s body, and put up the monument there. . The master finds that the sum should be allowed. The fact that the expenditure is not within the terms of the decree is not conclusive against it, but simply leaves on the administratrix the burden of justifying it when she renders her account. May v. Skinner, 149 Mass. 375. See Sweeney v. Muldoon, 139 Mass. 304, 306, 307. The statute authorizing an allowance for that purpose is not to be construed as confining the court to the case of a monument on a lot bought with the intestate’s money. Pub. Sts. c. 144, § 6. We see no reason to disturb the decree of the single justice affirming that of the Probate Court, so far as it allows this item, or so far as it allows a charge for legal services in obtaining the leave mentioned from the Probate Court (No. 95), or for preparing the lot (No. 106).

The charge of $6.75 for the rent of a box in a safety deposit vault seems to us proper under the circumstances of this case. Nothing else calls for particular remark. We are" of opinion that the account should be allowed, subject to a slight correction of No. 73 made by the master and not excepted to, except as to the charge of the administratrix. Her administration has been beneficial to the estate, but we see no sufficient reason for not following the master’s report, which agrees with the finding of the judge of probate.

Decree accordingly.