178 Mass. 263 | Mass. | 1901
This is an action against the sureties upon a bond given by the late Linus M. Child, Esq., as trustee under the will of one Sarah Baxter to the plaintiff.
The defences are, 1st, that the bond did not take effect as a probate bond for want of the written approval thereon of the judge of probate as required by Pub. Sts. c. 143, § 2; 2d, that it is not binding as a common law bond because it was intended as a probate bond and because it was not accepted by the obligee; 3fi, that the beneficiaries named in it are D. Baxter Merriam and Miriam S. Shattuck and it is effective only to the extent to which they are interested in the estate; and 4th, that the assessment of damages is wrong.
Exceptions were taken to the admission of certain evidence but they have not been argued and we therefore treat them as waived.
There were also demurrers which were overruled, and requests which were refused. But the defences as stated above include, we think, all the matters on which the defendants rely.
We do not deem it necessary to consider whether the bond is a good probate bond since we are of opinion that if it is not it is a good bond at common law. It appears that Mr. Child was appointed trustee under the will of said Sarah Baxter in December, 1870, and duly gave bond. Both sureties died and upon a petition by the beneficiaries, the Probate Court in December, 1894, ordered Mr. Child to give a new bond in the sum of $50,000. After the entry of this decree Mr. Child, in accord
The defendants contend that the question whether the bond was accepted by the obligee is concluded by the finding of the
In regard to the assessment of damages the defendants contend that there is no evidence to show that certain items and investments for which the trustee was held accountable were received or made by him after the execution of the bond in suit. But it is settled that sureties are liable for any default on the part of their principal in not accounting for amounts received before as well as after the execution of the bond signed by them. Choate v. Arrington, 116 Mass. 552. Dawes v. Edes, 18 Mass. 177.
Judgment on the finding. Execution to issue as ordered.