303 Mass. 39 | Mass. | 1939
This is a petition in equity in the Probate Court under G. L. (Ter. Ed.) c. 205, § 7A, to enforce the alleged obligation of the respondent Smolensky and of the surety on his bond as administrator of the estate of Sophie Winberg to pay a judgment for $3,024.76 recovered in a district court in an action by the petitioner as administrator of the estate of Sophie Wallin, his deceased wife, for services claimed by him to have been rendered by his intestate to Winberg before the latter’s death. See Harmon v. Sweet, 221 Mass. 587.
These facts appear from findings of the judge: The
Although he has had the benefit of the discharge of the mortgage on his own property, the petitioner as administrator of his wife’s estate now seeks to collect the full amount of the judgment. He contends that the judgment liquidated the claim for services, and that a liquidated claim cannot be settled by the payment of less than the amount due without additional consideration or an instrument under seal, citing Harriman v. Harriman, 12 Gray, 341, Specialty Glass Co. v. Daley, 172 Mass. 460, Moss v. Goldstein, 254 Mass. 334, and similar cases. The first question is whether Wallin as administrator of his wife’s estate agreed upon good consideration to accept the discharge of the mortgage on his own property in full satisfaction of the judgment.
The petitioner’s further contention that the accord and satisfaction were not binding upon him as administrator because he had no right to release the judgment held by his wife’s estate in exchange for the discharge of a mortgage on his own property requires little discussion. At common law he had as. administrator authority to compromise claims of the estate, subject of course to his duty to account at the proper time to the beneficiaries for any unfaithful administration. Chadbourn v. Chadbourn, 9 Allen, 173. Blake v. Ward, 137 Mass. 94. Thayer v. Kinsey, 162 Mass. 232, 235. Cook v. Richardson, 178 Mass. 125, 129. Malden Trust Co. v. Brooks, 291 Mass. 273, 290. And if we assume that the circumstances would charge Smolensky with notice of fraud, if there was fraud, on Wallin’s part, yet it is not established that in fact Wallin was guilty of the fraud or breach of trust of which, in order to avoid the settlement that he made, he now seems, at least by implication, to accuse himself. The procuring of the discharge of mortgage in settlement of the judgment was not necessarily a fraud or a breach of trust. Wallin may have been
Questions of the admissibility of evidence which are said in the petitioner’s brief to have arisen at the hearing are not before us, as the proceedings at the hearing are not reported. G. L. (Ter. Ed.) c. 215, § 12; c. 214, §§ 24, 25. Mackintosh, petitioner, 246 Mass. 482, 483.
The entry "Denied and dismissed, after hearing,” with the name of the judge in brackets and the date, apparently written on the petition itself, seems to have been intended as a final decree, and although informal, it is adequate as such. Churchill v. Churchill, 239 Mass. 443. Donovan v. Danielson, 263 Mass. 419, and cases cited.
Decree affirmed.