Brackett v. Williams , 110 Mass. 549 ( 1872 )

Wells, J.

The petitioner is a creditor. His petition was filed, and the decree of the Probate Court removing the administrator was passed, within two years after the appointment. His claim was not barred, therefore, by the Gen. Sts. c. 97, § 5.

He was not barred by the Gen. Sts. c. 99, § 20 : 1st. because it does not appear that the time for proof of claims before the commissioners had then expired under the Gen. Sts. c. 99, § 4; 2d. because eighteen months after the granting of letters of administration had expired, and it does not appear that it had then been ascertained whether the estate was or was not insolvent in fact; Gen. Sts. e. 99, § 25; 3d. because it does not appear that, upon recovery of the property alleged to have been embezzled, the assets will not “ prove more than sufficient to pay all the debts allowed by the commissioners; ” Gen. Sts. e. 99, § 20 ; 4th. be* cause such, property, when recovered, will be “ further assets.” Gen. Sts. c. 99, § 21. Holland v. Cruft, 20 Pick. 321, 335. Chase v. Redding, 13 Gray, 418. Welsh v. Welsh, 105 Mass. 229. In any aspect of the case, he was at that time “ interested in the estate ” sufficiently to entitle him to make complaint under the Gen. Sts. e. 96, § 6; or to institute proceedings under the Gen. Sts. e. 101, § 2; or to make the representation and bring an action upon the bond in accordance with c. 101, § 22. Newcomb v. Wing, 3 Pick. 168. He could not, it is true, bring a suit on the bond for his own benefit without leave of the judge of probate, and obtain execution for his own use, under §§ 19 and 20, and the first and second branch of § 28 of c. 101. But for the breach of duty with which this administrator is charged, no such suit could be maintained. The recovery would be for the benefit of the estate generally under the third or fourth branch of § 28. And the petitioner is interested in the right of the estate to recover this property as “ further assets,” whatever his position may prove to be in other respects.

The case must accordingly Stand for hearing.