166 Mass. 306 | Mass. | 1896
These are two appeals from decrees of the Probate Court; one from a decree refusing to order a decree for distribution, and one from a decree reallowing the account of the appellee. There is what purports to be a third appeal from the refusal of the Probate Court to reopen the account, but the papers show that that court reopened the account; and this appeal should be dismissed.
The account is the first and final account of Constant F. Whitney, administrator of the estate of Caroline R. Morton, and, as finally allowed, it shows that; after paying the debts and expenses of administration, there remained the sum of $5,074.04 to be distributed, and that that sum had been distributed. Of this sum the estate of Charles S. Morton would be entitled to one half, namely, $2,537.02, if he had made no assignment of his interest in the estate. The administrator in this account credited himself as follows:
“ 8. To share of husband of deceased, Charles S.
Morton, paid to his order.......$2,537.02
9. To share of son, J. F. Nichols...... 845.68
10. To share of daughter, E. J. Hendrick . . . 845.68
11. To share of son, C. F. Whitney..... 845.68 ”
There is no dispute that these persons were the distributees, and were entitled to the shares which have been credited in the account, and that these sums have been paid; but the share of Charles S. Morton has been paid on his order, which we understand was an assignment to Constant F. Whitney, the administrator.
Adelaide E. Palmer, who is the executrix of the last will of Charles S. Morton, petitioned the Probate Court to reopen this account of Constant F. Whitney, and to allow the account in such manner as to show a balance of $5,074.04 remaining in the hands of the administrator for distribution. The Probate Court
The share of the husband is credited in the account as paid “ to his order,” and that order was the assignment made by Charles S. Morton in his lifetime of his interest in the estate to said Constant F. Whitney. The dispute is whether this order or assignment was obtained by fraud, and the purpose of the appellant is to obtain a decree of distribution in her favor as executrix, and then to bring a suit against the administrator of the estate of Caroline R. Morton to recover the amount decreed to be paid to the estate of Charles S. Morton. In such a suit the administrator of the estate of Caroline R. Morton would be compelled to set up this order or assignment in defence, and the question whether the order or assignment had been obtained by fraud could then be tried.
The Probate Court, in the rehearing on the account, necessarily must have found that the order or assignment was valid, and-, that the share of the husband was rightfully paid to the assignee under the order; and this, in effect, is the finding of the single justice of this court, who has reported the case to the full court. The appellant contends that payments to distributees should not appear in such an account, but only in an account or return made under a decree of distribution ; that the Probate Court cannot recognize assignments of distributees’ shares; and that the validity of such assignments can be tried only in courts of common law, or in equity, and not in courts of probate.
It has been held that the only way in which an administrator of an intestate estate- can effectually protect himself against the claims of all possible distributees is by obtaining a decree of distribution, and distributing the estate in accordance therewith. Such a decree, obtained according to law after due notice, is
The more formidable objection in the present case is that the Probate Court has approved of the payment of the husband’s share to his assignee. When a formal decree of distribution has been made, the assignee of a distributive share ordinarily, by a bill in equity, can compel the administrator to pay the amount to himself if the assignment is a valid one. Lenz v. Prescott, 144 Mass. 505. Whether in the present case the-fact that the assignee is the administrator of the estate would be an obstacle to such a bill, we need not now determine. Probably also the assignee, in the name of the assignor, can bring an action at law against the administrator to recover the distributive share of the assignor after it has been determined by a decree of distribution. It is argued that, in such an action or suit in equity, the assignor would be entitled to a jury trial if he denied the validity of the assignment. So far as we are aware, it has not been determined in this Commonwealth that, in a suit in equity by the assignee against the assignor and the administrator, the assignor is entitled to a jury trial on the validity of the assignment ; and in actions at law in the name of the assignor for the benefit of the assignee it never has been held that the assignor can try the validity of the assignment by a jury. De
But if the appellant in the present case had a right to a trial by jury on the validity of the assignment in any proceeding against the estate of Caroline R. Morton, which we do not mean to intimate, she could have obtained such a trial on the appeal in this court held by a single justice. The power of this court to order issues to be framed for a jury in probate appeals is as ample as in suits in equity. It cannot be true that an administrator is necessarily compelled to pay actually and literally into the hands of the creditors of the estate and of the distributees the amounts due to them, and cannot pay the amounts on their order. Like any other person paying on an order, he takes the risk of the genuineness and validity of the order, and in a hearing on the allowance of an account it must be determined by the court passing upon the account whether payments made on orders are to be allowed or not. If, as has been found in the present case, the order was valid, and the administrator has paid all that was due to the estate of Charles S. Morton, according to his order, that estate has no interest in the further administration of the estate of Caroline R. Morton. This in effect was decided in Stevens v. Palmer, 15 Gray, 505. Whether the person to whom payment is made on such an order receives the money to his own use can be determined in an action brought directly against him, unless it has been determined in some other manner.
In Browne v. Doolittle, 151 Mass. 595, there was no decree of distribution, but the distributees had been paid, and the amounts so paid had been credited to the administrator in his account, which had been allowed before the expiration of two years from the date of his bond. After the allowance of the account, but
In the present case, we are of opinion that the action of the Probate Court was right. The other questions reserved in the report were not argued, and we consider them waived. The two decrees of the Probate Court which we have considered should be affirmed, and the third appeal should be dismissed.
So ordered.
