Barton v. White , 38 Mass. 58 ( 1838 )

The opinion of the Court was afterwards drawn up by

Shaw C. J.

The facts are not quite so definitely stated m this case, as would be desirable ; but we understand from the statement, that the estate was represented insolvent; that the creditor, for whose use this action is brought, presented his claim to the commissioners, which was allowed, and which, together with other claims allowed, was reported to the judge of probate ; that the administrator neglected for more than six months after the report was made, to settle his account of administration ; that consequently no decree of distribution amongst the creditors was made by the Probate Court, and that the creditor, for whose use this action is brought, made a demand on the administrator of payment of the debt, as report ed by the commissioners, which was refused ; that the creditor thereupon, without any order or authority from the judge of probate, commenced this action on the bond, for his own benefit, as such creditor.

The Court are all of opinion, that such an action cannot be maintained, and that this results from a due consideration of the provisions of the Revised Statutes. These provisions do not essentially alter the rules established by the former statutes, but render them in some respects more definite and precise.

In the Revised Statutes, there are but three cases, in which a party interested in the estate of a deceased person, can sue on the probate bond, for his own particular benefit, without an order or decree of the judge of probate

1. First, when the claim is by a creditor, who has obtained a judgment at law against the estate, and who has made an ineffectual demand on the executor or administrator for payment. Revised Stat. c. 70, § 3.

2. If the estate is insolvent when the amount due to a creditor has been ascertained by the decree of distribution, and a like ineffectual demand has been made. Revised Stat. c 70, § 4.

3. By a distributee, as next of kin, after his share has been ascertained by a decree of the Probate Court, and a like ineffectual demand. Revised Stat. c. 70, § 5.

These, it will be perceived, are cases, w'here the title of the claimant, and the liability of die executor or administrator as such, has been finally determined by the judicial decision of the proper tribunal, and no question remains open, but the sufficiency of the demand, the execution of the bond and liability of the sureties, or some question wholly independent of the plaintiff’s title to obtain payment from the representative of the estate.

The creditor’s claim, in this case, if embraced at all, must fall within the second of the cases above stated. But it fails in satisfying one essential condition in that case, inasmuch as there has been no decree of the judge of probate, distributing the balance of assets amongst the creditors ; and there could be no such decree, because there was no account stating the final amount of assets to be distributed. If, on such an account, it had appeared that the assets exceeded all claims finally allowed, by the report of commissioners, not appealed from, and settled by adjudication, then it would appear that the estate was not insolvent, and any decree of the judge of probate, directing the executor or administrator to pay the sums reported by the commissioners, would be void. The authority of the P-obate Court is, to distribute or apportion the assets amongst '.e creditors ; and of course exists only where there is not eno ,gh to pay the whole. Dawes v. Head, 3 Pick. 128.

But it is said, that, on this construction, a creditor has not an adequate remedy. But this position cannot be maintained

In the first place, if the administrator has failed to rende, his account, for six months after the report of commissioners, and the final liquidation of claims, so as to delay a decree of distribution, such neglect shall be deemed unfaithful administration and a breach of the bond, and the executor or administrator may be removed and shall be liable on the bond for all damages occasioned by his default. Revised Stat. c. 68, § 25.

The recovery in such case is of all damages occasioned by the default of such delinquent administrator, not the special damages sustained by one creditor. The suit is for the benefit of all parties interested. Then the course of proceeding is indicated by the Revised Stat. c. 70, § 10, fourth subdivision, in which it is provided, that execution shall be awarded, without expressing that it is for the use of any particular person, that is, generally in the name of the judge of probate. The suit in such case is to be brought, by any creditor, next of kin or legatee, who may be authorized by the judge of probate, upon a representation to him made, that the administrator has failed to perform his duty, in any other respect than those specified, that is, non-payment of debts ascertained by judgment, non-payment of dividends to creditors of an insolvent estate, ascertained by a decree of distribution, and non-payment of distributive shares to next of kin, as determined by a decree of distribution. Revised Stat. c. 70, § 6. In such case, by § 7, there shall be an indorsement of the name of the person authorized, who shall be liable for costs, and execution shall issue against such indorser, and not against the judge of probate. And by § 11, all moneys recovered in such suit, shall be paid over to the co-executor or co-administrator, or to whoever shall then be the rightful executor, and shall be assets to be administered. Thus the course seems to be plainly marked out. If the delinquent executor be chargeable with any actual breach of trust, he will commonly be removed. If there be a co-executor or administrator not chargeable with the like default, the assets thus recovered from the delinquent and his sureties, will be paid to him, otherwise to an administrator de bonis non, to be appointed ; and in either case the money will be appropriated and distributed to the several persons by law entitled to it.

Under the St. 1794, c. 5, the creditor who had presented his debt to the commissioners, and when the administrator had neglected for six months to settle his account, had another remedy by being remitted to his right of bringing his action against the administrator and recovering his debt, in the same manner as if such estate had not been represented insolvent. But in the corresponding enactments of the Revised Statutes, c. 68, § 25, this provision does not appear to be renewed. But the remedy, by an application to the Court of Probate, to remove the delinquent executor or administrator, and authorize a suit to be brought on the bond, for the general benefit, appears to be adequate and complete.

The counsel for the plaintiff relied with some confidence upon the case of Coney v. Williams, 9 Mass. R. 114, as an authority to support the present action, to recover the amount reported by the commissioners, after the administrator had neglected for six months to settle his account.

The first remark upon that case is, that all the laws then in force on the subject, have been repealed by the Revised Statutes, and if by these the law is changed, the latter and not the former must govern, and the law being clear upon the Revised Statutes, the rule therein prescribed must prevail. But there is a much more satisfactory view of that case, which is, that it is in nowise opposed to the present decision. In that case a judgment at common law had been recovered by the creditor against the estate, and the amount ineffectually demanded of the administrator before the commencement of the action. The pleadings were somewhat complicated, and not very intelligible. But the cause was decided, on the ground, that a judgment had been recovered against the estate, and the administrator could not avail himself of the bar, arising from the commission of insolvency and the proceedings under it, because he had not settled his account so as to enable the judge of probate to make a decree of distribution according to law. The Court treat it as a case, where a creditor may proceed and is entitled to maintain his action, to the same effect as if no proceedings, as upon an insolvent estate, had been had. That decision, therefore, is entirely consistent with the present, which is, that there being no judgment at common law obtained by the creditor, and no decree of distribution, as under proceedings upon an estate actually insolvent, a suit bv the creditor for his own benefit, and without a decree from the Probate Court, cannot be maintained.

Verdict set aside, and the plaintiff to become nonsuit.