143 Mass. 326 | Mass. | 1887
In White v. Ditson, 140 Mass. 351, it was held that the sureties on the bond of Healy, as executor of the will of Percival, were not responsible, in view of the limited character of the bond given by them previously to the St. of 1880, o. 152, (Pub. Sts. c. 129, § 5,) for the proceeds of the real estate which had been sold under a direction by the testator to his executor named, “ or whoever shall execute ” the will, to convert his real estate into money. When real estate had been changed into money by virtue of a power in the will, it was not, in our view, that personal property for the administration of which the sureties became responsible. So far as the real estate was concerned, their obligation was definitely limited to “ the proceeds of his real estate that may be sold for the payment of his debts and legacies.”
By the will of Percival, the whole property (after payment of certain debts and legacies) was bequeathed to Healy, who was also executor, in trust, to be disposed of by him for charitable purposes. Healy never settled any account as executor, nor did any definite act in the Probate Court by which it could be held that he had discharged himself in the capacity of executor, and had accepted the trust imposed on him, and thus thereafter held the property as trustee. But while the sureties were held not to be responsible for the proceeds of real estate sold by Healy, it by no means follows that he was not responsible therefor as executor, or that the money received from the sale of the real estate was not, as against him, of the goods and chattels, rights and credits, of the estate which he was bound faithfully to administer in the execution of the will.
That, in some form and to some one, the estate of Healy must respond for the money received by him from the sale of the real estate of Percival must be conceded. Marvel v. Babbitt, ante, 226. The question before us is, whether the administrator de bonis non of Percival may now, as “ the goods and estate of the deceased not already administered,” prove a claim for the amount received by Healy from the sale of the real estate before the commissioners of insolvency on his estate. The administrator de bonis non has already recovered by action upon the executor’s bond of Healy the balance of the personal property which Healy had failed to devote to the purposes of the trust.
Whether, in the case at bar, after the administrator de bonis non shall have recovered against the estate of Healy, it shall be determined that a new trustee can be appointed to execute the charitable trust upon which the residue was bequeathed, and whether, if he cannot, the next of kin may have a claim against that part of the residue which was originally personalty, or whether, if so, the heirs at law are'entitled to assert a right, as against the proceeds of the real estate, as well as other questions which have been suggested, need not now be decided. As the matter stands, the funds which were in the hands of Healy were the goods of the testator subject to administration, even if the money was derived from the sale of land made by him for the purpose of converting it into personal property in accord anee with the direction of the will.
We are of opinion that, in the case at bar, the administrator de bonis non was entitled to prove against the estate for the amount received by Healy as the proceeds of real estate.
The inquiry remains, whether the burden is upon the plaintiff to show that the sum thus received has not been paid out in charities in execution of the trust upon which he was entitled to receive the residue. Although Healy did not settle his account as executor, nor transfer this residue to himself as trustee, yet, as it is found that there were no debts and legacies unpaid, if he distinctly devoted as trustee any of the funds to the charitable purposes contemplated by the will, to that extent the damages should be reduced. Of such deduction he has heretofore had the full benefit apparently. White v. Ditson, ubi supra. He wholly failed to account as executor or trustee; had he rendered accounts in the‘proper court, he there would have been required to produce vouchers, receipts, or other proper evidence of payment. It would certainly be a curious anomaly, if, by failing to account, he could throw upon one claiming the property the burden of showing that he had not lawfully expended the fund.
The defendant contends, that, if the plaintiff has any remedy, it is in equity only, and that equitable claims are not provable before commissioners in insolvency; but such liabilities were made provable by the St. of 1884, c. 293.
Judgment on the finding.
“ Equitable liabilities shall be deemed to be debts provable against estates in. insolvency and against estates of deceased persons represented insolvent.”