Thayer v. Kinsey

162 Mass. 232 | Mass. | 1894

Allen, J.

When Mrs. Ammidown,. as administratrix de bonis non, received the transfer of the sixty-three shares of Post and Company stock, she was the sole representative of the estate, and as such it was her province and duty to collect and receive the assets remaining unadministered from the original executor. Wiggin v. Swett, 6 Met. 194. Newcomb v. Williams, 9 Met. 525, 538, 539. Fay v. Muzzey, 13 Gray, 53. Browne v. Doolittle, 151 Mass. 595, 600. Foster v. Bailey, 157 Mass. 160. Being the representative of the estate, she might give a release, submit a claim to arbitration, or make a compromise. She had the same power, with respect to estate left unadministered, as the original executor. Wins. Ex. (6th Am. ed.) 961. Bean v. Farnam, 6 Pick. 269. Chadbourn v. Chadbourn, 9 Allen, 173. Blake v. Ward, 137 Mass. 94. It was within her power, if she saw fit to do so, to have an accounting with the original executor, and to settle with him.

We may assume that the investment in Post and Company stock was one which the court would not sanction, and for which the executor would be held personally responsible in case of loss. The auditor finds that, in settlement with the administratrix de bonis non, the executor turned over to her a certificate for the sixty-three shares. The justice who heard the case finds, in addition, that for a long time after she received this transfer, and while she retained the same and received dividends thereon, and voted by proxy at the stockholders’ meetings, the stock was worth as much as, or more than, the amount of trust funds invested therein, and might readily have been sold for at least that amount; and that if she had declined to receive the same, or had within a reasonable time retransferred or redelivered the same to the former executor, he could have sold the same for an amount at least equal to the cost thereof. But she retained the same.

There appears to be no reason to doubt that he made this transfer to her as and for an asset of the estate in which he had properly invested the funds of the estate, or at any rate as an asset which was then worth what it had cost. If she entertained a different opinion, she might have protested that in receiving the shares she would take them for only so much as they were then worth, or she might have declined to receive them at all, and looked to his bond. Burgess v. Keyes, 108. Mass. 43, 45. But she did nothing of the kind. She took the shares without protest or objection, and kept them for a long time, and in point of fact they were worth their full cost. She accepted them. She did not make it known that she took them on any other terms than those upon which they were offered to her. At least she must be held to have taken them as and for as much as they were worth. Whether by her acceptance of the shares without objection she is precluded from afterwards saying that she took them on different terms from those upon which they were offered, or whether she, by taking them, became bound to give credit to him for their actual value at the time, or at such time as she by reasonable diligence could have disposed of them, in either case the result is the same.

Upon the report, the executor is entitled to be credited with the sum of $6930, invested in the shares. No other question, as we understand the report, is presented for our decision.

So ordered.