210 Mass. 214 | Mass. | 1911
1. The first exception is to the refusal of the judge
But these facts cannot from the nature of them be tried by any one of these judges and are not ground for a continuance until they are heard by the proper tribunal. This exception must be overruled.
2. The second exception is an exception to the order of the judge denying what was in effect a motion by the plaintiff to strike out the defendant’s demurrer. This was based on the ground that the demurrer was not in accordance with R. L. c. 173, § 16. It is in the words of1 the second clause of that section, omitting the words “ or some count thereof, ” and substituting for the concluding words thereof, to wit, “rules contained in this chapter,” the words “rules contained in the Revised Laws of the Commonwealth and acts in addition thereto and in amendment thereof.” This exception must be overruled. For similar cases see Johnson v. Reed, 136 Mass. 421; Whiton v. Batchelder & Lincoln Corp. 179 Mass. 169, and cases cited.
3. The third exception is to the order of the court sustaining the demurrer and ordering judgment to be entered for the defendant on the first Monday of March, 1911.
The judge was right in sustaining the demurrer. What the plaintiff alleges in his declaration is that he is a grandson and one of the three “heirs at law” of one Hiram R. Horton, who died intestate in 1901, the other two heirs being a son of the intestate and his widow. That the widow was duly appointed administratrix of the estate; “ that the said admx., [szc] Jennie A. Horton, . . . employed the defendant’s testator ... as the attorney of the said estate to conduct the settlement of the said estate, collect its claims and to advise her in her conduct of the settlement of the said estate, and prepare and make her legal
Upon the death of Hiram R Norton and the appointment of his widow as administratrix of his estate the title to the personal property of Hiram vested in her as of his death, and a right vested in the plaintiff as one of the next of kin (entitled to a distributive share of the estate) to have the estate properly wound up and distributed.
If an attorney employed by an administrator to help him in winding up an estate robs the estate or neglects his duty to it, the administrator in whom is the title to the personal property ■ constituting the estate and with whom the contract in such a case is made by the attorney, is the person who has the right to bring an action for the wrong so done. Such an action cannot be brought by a distributee because he had no title to the personalty constituting the estate (Cummings v. Cummings, 143 Mass. 340; Pritchard v. Norwood, 155 Mass. 539; Flynn v. Flynn, 183 Mass. 365), and because the duty owed by the attorney arises under a contract to which the distributee was not a party. The distributee’s right is a right to have the estate properly wound up and distributed, and that right must be pursued in the Probate Court which has exclusive jurisdiction of such matters. See Cummings v. Cummings, Flynn v. Flynn, ubi supra, and Putney v. Fletcher, 148 Mass. 247.
If as is alleged in this declaration the administrator is a party to the fraud of the attorney, the remedy and the only remedy of the distributee is to have the administratrix removed and a new administrator appointed whose duty it will be to recover from both for injuries done by them to the estate. It appears from the papers annexed to the declaration in the case at bar that the administratrix of Hiram Norton’s estate has filed a final account but that it has not been allowed.
At the argument the next friend and guardian of the plaintiff
4. But the exception taken to the order directing judgment to be entered on the first Monday of March, 1911, must be sustained.
An exception can be taken to a ruling of the Supreme Judicial Court or the Superior Court upon any matter of law. R. L. c. 178, § 106. This includes an order of the Superior Court overruling or sustaining a demurrer. McCallum v. Lambie, 145 Mass. 234. McCusker v. Geiger, 195 Mass. 46, 52, and cases cited. Kennedy v. Welch, 196 Mass. 592. Indeed the only way of carrying to the full court the correctness of an order of a single justice of this court overruling or sustaining a demurrer in an action at law was by taking an exception if the single justice did not in his discretion report the question to the full court. Cowley v. Train, 124 Mass. 226.
It is provided by R. L. c. 173, § 79, that after exceptions have
The entry must be: Exception to order for judgment in March, 1911, sustained; all other exceptions overruled.
So ordered.
Schofield, J.
The plaintiff was a minor and Vincent E. Barnes was appointed his guardian by the Probate Court.