134 Mass. 120 | Mass. | 1883
The plaintiff, the defendant and their brother, Larkyn J. Foster, were the sole heirs and next of bin of Benjamin Foster. The plaintiff and the defendant jointly administered upon their father’s estate, which has now ostensibly been
As framed, the bill seeks to transfer to this court the settlement of the account of the defendant from the Probate Court, which has ample jurisdiction to redress the matters of which the plaintiff complains. If it was the duty of the defendant to have accounted for these bonds as a part of the estate of the intestate, he could have been cited before that court and ordered so to do. Gen. Sts. c. 96, § 6. If the plaintiff was dissatisfied with the decision there, she could have appealed to this court. The receipt given by the plaintiff was certainly not conclusive against her, under the circumstances alleged as the inducement to her signing it. Even where an administrator produces receipts from
Where an account has been settled, it is also competent for the Probate Court to open it, upon a proper case made by petition, for the purpose of correcting any mistake as to any matter which it has not so passed upon and decided that an appeal can be claimed to this court. Stetson v. Bass, 9 Pick. 27. It cannot decide that an account of an administrator is final, so that no further inquiry can be made as to matters not properly included in such account, nor can it thus oust itself of its appropriate jurisdiction. Field v. Hitchcock, 14 Pick. 405. Gen. Sts. c. 98, § 12.
It is in the Probate Court that the accounts of the two administrators must be adjusted in order to determine whether, even if these bonds should have been inventoried and accounted" for, any sum should be ordered to be paid to the plaintiff. We have no means of ascertaining this. An investigation there can alone determine what she has already received, and what she is entitled to receive.
In seeking to maintain this bill, the argument of the plaintiff is, that, by reason of having given a joint bond with the defendant for faithful administration, she would be without remedy unless it is thus afforded. This is erroneous. If, before the Probate Court, it were proved that the defendant had two bonds belonging to the estate of the intestate, for which the plaintiff, as one of the next of kin, was entitled to have him account, and he failed so to do, or if, having accounted for them, he failed to pay them over or divide them as ordered by the Probate Court, it would be the duty of that court to remove him from his position. Gen. Sts. c. 101, § 2; c. 96, § 6. Pub. Sts. c. 132, § 14; c. 133, § 1. When thus removed, he might be sued by the remaining administrator, as might any other person wrongfully holding property of the intestate. Upon recovery, if the .
The bill rests upon an alleged failure of the defendant to perform his duties as administrator. This court, in the exercise of its original jurisdiction, is not the appropriate tribunal for the inquiry. Bill dismissed, with costs.