Paine v. Stone , 27 Mass. 75 ( 1830 )

Per Curiam.

The defendant objects, first, that the replication is insufficient, because a question of fraud in the settlement of the administration account cannot be tried collaterally in this action. We think this a sufficient ground of defence. The probate court is the proper forum for settling the account. If the party aggrieved by the fraud is aware of it at the time when the account is allowed, he may appeal ; and if he is not, he may cite the administrator to resettle his account, and allege the fraud. This was fully considered in the case of Jennison v. Hapgood, 7 Pick. 1, where it was held, that a suit in equity was a collateral proceeding1, and that application should be made to the court of probate to resettle an account alleged to be fraudulent.

Another objection is, that the indorsement on the writ states the action to be brought for the benefit of individual -creditors, and no demand of payment of their debts has been made on the administratrix. This likewise is a good defence. If the case of Glover v. Heath, 3 Mass. R. 252, stood alone, it would countenance the plaintiff’s position, that notwithstanding the indorsement the writ may be sustained, and judgment be rendered for the judge of probate for the benefit of all the creditors.. But the point has been recently before the Court in Coffin v. Jones, 5 Pick. 61, and determined otherwise. There are two cases in which a creditor may sue on the bond as a matter of right, in the name of the judge of probate 5 one, where the debt is ascertained by a judgment; the other, where the estate is insolvent and he produces a decree of distribution, in which his claim is specified ; and in both cases it must appear that a demand has been made on the administrator, and the indorsement of the writ must state that the action is brought for the benefit of the creditor. Practically the indorsement is a part of the writ, and the creditor a party to .the action. Where the debt is not so ascertained, the creditor must obtain permission from the judge of probate to institute a suit in his name on the bond. Robbins v. Hayward, 16 Mass. R. 524. The writ, therefore, cannot have the double aspect, for which the plaintiff’s counsel contend.

The replication, assigning no sufficient breach of the bond, must be adjudged bad.