217 Mass. 552 | Mass. | 1914
The defendant administratrix is apparently misdescribed as to the initial of her middle name in the title of the case as printed in the report and in the fourth line of the text of the report on page 1. Reference to the printed copy of the bond would indicate that her name is Catherine C. Crowley.
The defendant Crowley was appointed administratrix on March 18, 1909, and within three months thereafter filed an inventory describing real estate of the value of $800, but from which it appears that there was no personal estate. She filed an affidavit of notice of her appointment on June 24, 1909. On November 21, 1912, she filed her first and final account, setting forth that she had not received any personal property, had not paid out anything, and had no personal property in her possession. This account has not been allowed. No representation has been made of the insolvency of the estate. The original action was brought on September 13, 1910, about eighteen months after the appointment of the defendant as administratrix, and judgment was entered for the plaintiff on February 9, 1912. The judge of the Superior Court
It is contended by the defendants that the real estate described in the inventory has been conveyed by deed of the Jheirs to a bona fide purchaser for value and in good faith; and that, no notice of his claim having been filed by the creditor in accordance with St. 1907, c. 549, this action cannot be maintained.
If this were a proceeding to take or sell the real estate in satisfaction of the creditor’s debt and it appeared that it had been conveyed for value and in good faith by an instrument duly recorded, it is manifest that it could not be so taken or sold because of the failure of the creditor to file the notice required by the statute.
The difficulty with this contention of the defendants is that this is not a proceeding to take or sell the real estate, but is an action brought against the principal and sureties on the bond given to the judge of probate for breach of condition of the bond. The statute therefore has no application, but is intended to protect
The administratrix contends that she never has received any assets belonging to the estate and therefore ought not to be held liable on her bond. Her remedy was to have represented the estate insolvent, and, if afterwards an adjudication of insolvency was made by the Probate Court and an order of distribution made thereunder, the defense of plene administravit would have been a bar to claims of creditors. As no such representation was made, the failure of the administratrix to pay the judgment constitutes a breach of the bond for which she was liable to the plaintiff. As was said by this court in Mclntire v. Parker, 195 Mass. 155, 156, "Until its insolvency had been ascertained, and declared by a decree, the estate must be presumed and treated as solvent in suits by creditors, and the entire failure in fact of assets to satisfy the judgment is immaterial.” McKim v. Roosa, 183 Mass. 510. McKim v. Glover, 167 Mass. 280. Newcomb v. Goss, 1 Met. 333. See also Keith v. Molineux, 160 Mass. 499.
If the administratrix is obliged to satisfy the amount of the
In accordance with the agreement stated in the report, judgment is to be entered for the plaintiff for the penal sum of the bond, namely, $2,000, and execution is to be issued for the sum of $230.65 with interest thereon from February 17,1912.
So ordered.
In the title of the case as printed above the name is in its correct form.
Lawton, J. He found for the plaintiff, and by agreement of the parties reported the case for determination by this court.