202 Mass. 104 | Mass. | 1909
The first of these cases is an action upon a probate bond to pay all debts and legacies of a testator, given by the principal defendant as residuary legatee with sureties, under the provisions of the R. L. e. 149, § 2. The action is brought for the benefit of the plaintiff in the second action, who recovered judgment against the executrix, upon a claim founded on the fraud of the testator, whereby, while standing in a fiduciary relation to the plaintiff, he induced the plaintiff to lend money on what it supposed to be good security, when in fact the security was of little value. An execution was issued upon the judgment and it was returned unsatisfied. If this liability of the estate was a debt within the meaning of the statute, there is no defense to the action upon the bond.
It is rightly contended that, in the strict technical meaning of the word “ debt,” this claim was not a debt at the time of the death of the testator. But the Superior Court held that it was a valid claim against him which survived his death and was enforceable against his estate. See Warren v. Para Rubber Shoe Co. 166 Mass. 97; Parker v. Simpson, 180 Mass. 334; Leggate v. Moulton, 115 Mass. 552. For the purposes of the present case the judgment must be held to have established conclusively the validity of the claim against the estate of the testator. Conant v. Stratton, 107 Mass. 474.
The important question is what construction should be given to the word “ debts ” in this statute. It is sometimes used in a very broad sense, such as to include all enforceable demands, and even moral obligations, although its ordinary meaning is narrower. Atlas Bank v. Nahant Bank, 3 Met. 581. Cook v. Bartholomew, 60 Conn. 24, 26. State v. Georgia Co. 112 N. C. 34, 37. Scott v. Neeves, 77 Wis. 305, 310. Baltimore v. Gill,
The second suit is by a writ of scire facias, brought under the R. L. c. 172, § 8, because of a recovery of judgment against the executrix and a return of the execution unsatisfied. These facts, upon a suggestion by the judgment creditor that there has been waste, impose upon the executrix a personal liability for the amount of the judgment, unless she shows cause to the contrary by proving that the suggestion of waste is incorrect. In the present case the defendant has filed an inventory and an account, by which it appears that she has paid debts of the testator to an amount considerably larger than the amount of his assets'. The judge ruled that the defendant might show that in fact there was no waste, and found that she had established the fact by her evidence.
We are of opinion that the ruling was correct. While it is said in many cases that the giving of a bond to pay all debts and legacies is a conclusive admission of assets sufficient to pay the debts (see Jones v. Richardson, 5 Met. 247, National Bank of Troy v. Stanton, 116 Mass. 435, Thayer v. Winchester, 133 Mass. 447), this means conclusive as against a defense of no assets, set up in a suit upon the bond, or in a suit against the executor to recover a judgment against the estate, or in a suit
The inventory and account, with the testimony of the defendant in support of them, show that the assets were properly administered. The case of Jenkins v. Wood, 144 Mass. 238, goes no further than to hold that it would not be proper administration for an executor, after giving such a bond, to use a part of the assets to pay his own personal debt and leave another debt unpaid. The only debatable question as to the suggestion of waste in the present case grows out of the testimony that the defendant’s son, who acted for her in some matters in the settlement of the estate, was shown the plaintiff’s papers and informed of the plaintiff’s claim, at a time which was probably before the payment of some of the other creditors, and it is contended that the-defendant should at least have declared the estate insolvent, so that the plaintiff might receive its share. The defendant testified, and there was no one to contradict her, that she had no actual knowledge or notice of the plaintiff’s claim until after all the assets had been paid to other creditors, nearly two years after the date of her appointment. The son died before the trial. The judge found as a fact that she had no such knowledge or notice, unless, as matter of law, she was charged with notice from the facts stated in his report. These facts are the claim made upon her son, with an exhibition of the papers relied on by the plaintiff, and the relation of the son to the business of settling the estate. The evidence does not show that the judge was bound to find as matter of law, either that the defendant’s son was so far her general agent as to bind her, in a special matter of this kind, by his knowledge of the testator’s liability to the plaintiff, or that the information given him was so convincing as to be equivalent to knowledge. Perhaps the evidence would
Judgment is to be entered in favor of the plaintiff in the first case, and of the defendant in the second case, in accordance with the terms of the report.
So ordered.
