198 A. 183 | Conn. | 1938
The complaint alleged that the named defendant was executor of the will of Laura B. Hubbard and, with the other defendant as surety, gave the bond in suit; that he received assets of the estate (found in this action to amount to $4714.46); that he failed to render an accounting to the Court of Probate, was removed as executor and the plaintiff appointed administrator d. b. n., c. t. a.; that the estate was entirely wasted by this defendant so that no assets have come into the hands of the plaintiff; and that this action is brought for the benefit of unpaid creditors and legatees. The defendants each filed, in addition to an answer raising the general issue, a special defense setting forth numerous payments alleged to have been made to creditors and legatees and for expenses which were alleged to have been necessary in *113 the proper administration of the estate. On the trial the court, under this defense, determined as to the propriety of each of the payments so alleged and allowed credits for expenditures amounting to $4827.80, being $113.34 in excess of the amount of assets received by the executor, and rendered judgment for the plaintiff for $133.80, only, being the amount of two unpaid claims which it held should have been satisfied prior to the payments made to residuary legatees.
Section 5669 of the General Statutes provides that in an action on a penal bond "such damages only shall be assessed as are equitably due, and judgment shall not be rendered for the whole penalty, unless it shall appear to be due." The trial court construed this provision as meaning, as applied to the present action, that credits to the defendant were not to be confined to expenditures authorized or approved by the Court of Probate but that the Superior Court could and should, in this action, determine what expenditures had been justifiably made by the executor, and accordingly allowed the defendants credits for payments which it found had been reasonably incurred for the proper administration of the estate. The correctness of this construction and of the resultant ruling is decisive of the present appeal.
The object of the quoted provision of 5669 of the General Statutes, and the extent of its operation, is that obligors upon penal bonds shall not be held to pay the whole penal sum specified, regardless of what may be justly due, but only the amount so due. State v. Thresher,
Under the complaint in the present action, the amount recoverable primarily would be the value of the assets received by the named defendant as executor, which were alleged to have been entirely wasted by him. In order to reduce the damages it was incumbent upon the defendants to show disbursements allowable as credits against the ascertained amount of the assets with which the named defendant was chargeable as executor. Cleaveland, Hewitt Clark, Connecticut Probate Law and Practice, p. 100; Prindle v. Holcomb,
In Brush v. Button,
The result is that the trial court was in error in adjudicating upon the expenditures claimed as credits by the defendants. As pointed out in Brush v. Button, supra, the executor might have settled his account in the Court of Probate at any time before the present action came to trial, and it is undoubtedly within the power of the court in which such an action is brought, in the reasonable exercise of its discretion, to continue the case until the executor has had opportunity to obtain such a settlement of his account.
There is error and a new trial is ordered.
In this opinion the other judges concurred.