117 Mass. 222 | Mass. | 1875
It was held in Dawes v. Shed, 15 Mass. 6, that sureties upon the bond of an administrator could not be held liable to a creditor of the estate for the amount of a judgment • obtained by him in a suit commenced after the claim was barred by the statute limiting actions against executors and administrators, to which the administrator neglected to plead the statute. We are not aware that that decision has been limited or qualified in any way since. It is referred to with approval in Heard v. Lodge, 20 Pick. 53, 58, by Mr. Justice Dewey, stating more fully and precisely the rule and the reason for it. Of this statute bar he says : “Its effect is therefore controlling and decisive, and to this extent the sureties may object to the effect of a judgment against their principal, when sued on their bond to the judge of probate.”
The fact that the administratrix did plead' the statute in this case does not distinguish it from Dawes v. Shed, because that issue was never tried. Suffering a default afterwards was an abandonment of the plea. The judgment of the court on default does not involve any consideration of the defence set up by the plea.
The suggestion that the administratrix may have submitted to judgment by reason of inability at that time to sustain the defence will not avail, especially as there is nothing in the case to indicate any foundation for it.
The money received from the patent rights, whether as royalties or as proceeds of sales of rights, was not “new assets.” We infer from the report, and it was so assumed by the argument on both sides, that this money arose from sales or contracts made by the administratrix, or, at least, that it accrued after the decease of the intestate, and that it arose from the inventions mentioned in the inventory. It was the product of the property included ic
The fact that there were assets remaining in the hands of the administratrix does not affect the question of the right of the creditor to enforce his judgment against the sureties. If he could reach the goods and effects of the intestate in the hands of the administratrix, he might thus make the sureties liable to the distributees for the waste caused by the neglect of the administratrix ; because that would be a breach of the bond. But non-payment of a judgment so obtained is not maladministration which constitutes a breach of the bond.
Whether sureties of an administrator could go behind a judgment rendered against his defence upon the plea of the statute set up and attempted to be maintained in good faith, we need not now consider. The report shows that the defence might and ought to have been maintained successfully, and that the administratrix did not attempt it, but allowed judgment to go by default. Such a judgment may be binding upon the administratrix personally, and perhaps upon the personal assets remaining in her hands, if they can be reached by means of the execution. But it will not support supplementary proceedings for the appropriation of the real estate of the intestate, either by levy of the execution or by sale under license of the Probate Court; because it is not founded upon a valid subsisting debt for which the real estate is chargeable. Thayer v. Hollis, 3 Met. 369. Lamson v. Schutt, 4 Allen, 359.
It is equally competent for the sureties to show that the debt is not one for which they ought to be made responsible, by reason of the statute bar. Judgment for the defendants.
