296 Mass. 503 | Mass. | 1937
These are petitions in equity brought in the Probate Court under G. L. (Ter. Ed.) c. 205, § 7A, to en
Before they filed their petitions the petitioners had severally recovered judgment against the respondent Carberry as administratrix, and she had neglected upon demand to pay the same or to exhibit property of the estate upon which the executions could be levied. See G. L. (Ter. Ed.) c. 205, §§ 20-23; c. 205, §§ 1, 7A; and c. 198, § 1. The Probate Court held that this was a breach of the bond in each instance and ordered the respondents to pay the amounts of the original executions and that executions issue from the Probate Court therefor. It becomes necessary on this appeal to deal with certain alleged defences urged by the respondent surety. We have considered only matters argued.
After the judgments against her in the law actions, the administratrix filed and, after notice, procured allowance by the court of a “First and Final Account” wherein it appears that all the assets of the estate were exhausted by various losses and by the payment of charges of administration and of various preferred claims, but in which nothing appears to have been paid to the judgment creditors. “The account was intended by the administratrix to show an exhaustion of all the assets of the estate by payments to preferred creditors.” The surety argues that the allowance of this account is a defence, citing G. L. (Ter. Ed.) c. 197, § 5.
Prima facie, failure to pay an execution on demand is a breach of the bond, though a final adjudication of insolvency of the estate would be a defence. Harmon v. Sweet, 221 Mass. 587, 591. Chamberlain v. Barrows, 282 Mass. 295. McKim v. Roosa, 183 Mass. 510. That indicates the nature of the bond which under this proceeding the petitioners are entitled to enforce. The fatal difficulty
The short statute of limitations is not a defence to this proceeding on the bond. It appears that the question whether that statute was a bar to the original actions at law was in fact fully litigated in the District Court. It cannot be tried out again in this proceeding, and the surety
As to the defence of loches, it is enough to say that if that defence is open in this proceeding, it is an issue of fact, and no facts are shown by the report requiring a finding of loches as matter of law. Hawkes v. First National Bank of Greenfield, 264 Mass. 538. Alvord v. Bicknell, 280 Mass. 567, 571.
Decrees affirmed.