Lamson v. Knowles

170 Mass. 295 | Mass. | 1898

Allen, J.

The first question before us is whether a decree of distribution will protect the administrator. It was held in Sargent v. Sargent, 168 Mass. 420, that it is competent for the Probate Court to entertain jurisdiction of the settlement of the accounts of an administrator appointed for the sole purpose of collecting and receiving assets like those in the hands of the administrator in the present case; at least when he has not been called to account by other judicial proceedings instituted before the jurisdiction of the Probate Court for this purpose is sought. The settlement of the accounts of an administrator by implication includes the passing of an order for the distribution of the funds ’ in his hands. Such order of distribution, therefore, if passed on due proceedings, will be a protection to the administrator. Loring v. Steineman, 1 Met. 204. Pierce v. Prescott, 128 Mass. 140, 144. Cathaway v. Bowles, 136 Mass. 54.

There is no statute which prescribes what notice shall be given before making a decree of distribution. It is therefore left for the court in its discretion to determine what notice ought to be given. Loring v. Steineman, 1 Met. 204. The appeal brings before us the question whether reasonable notice was given in the present case; and this court may pass such decree as the Probate Court ought to have passed, and may remit the case for further proceedings, or take any other order therein, as law and justice may require. Pub. Sts. c. 156, § 17. Upon consideration, it seems to us that further notice ought to be given before approving the decree of distribution. To be sure, a notice by publication in a newspaper in Texas was given in former proceedings in the Superior Court in respect to the distribution of this same fund. But even that notice, which apparently reached none of the descendants of Paul Gardner, was not in form such a notice as we think should be given, in view of all the circumstances. The new notice issued by the Probate Court in the present case, if taken by itself alone, was obviously unlikely to reach any such descendants. A further notice should therefore be given, in a form to be approved by a justice of this court, and returnable into this court.

So ordered.