Defriez v. Coffin , 155 Mass. 203 ( 1892 )

Morton, J.

This is an action upon a probate bond against an administrator and sureties. After a verdict for the penal sum, the defendants moved that the amount for which execution should issue should be assessed by a jury, under the Pub. Sts. c. 171, § 10. The court overruled the motion, holding that it was a matter of discretion, and the amount was fixed by the court. The defendants excepted to this ruling. We think it was correct. The provisions of the Pub. Sts. c. 171, § 10, do not apply to suits upon probate bonds. Those stand in a class by themselves. It is especially provided that suits on the bonds of executors, administrators, guardians, and- trustees shall be brought in the Supreme Judicial Court, which is the Supreme Court of Probate. Pub. Sts. c. 143, § 19; c. 156, § 5. Doubtless one reason for this provision was that they might be governed by the same rules that apply to other probate proceedings. It is further provided that, “ when it appears that the condition of the bond of an executor or administrator has been broken, the court upon a hearing in equity shall award execution” for the sums that may be found due, in the various cases named in the statute, of which this is one. Pub. Sts. c. 143, § 20. The case is thus taken plainly out of the provisions of c. 171, § 10. Upon a hearing in equity, the court may submit issues to a jury, or may hear the matter itself, as it deems best.

The other exception is to the refusal of the court to rule that the defendant Coffin had fully administered the estate, and that neither he nor the sureties on his bond were liable to the daughter on the probate bond, and to the ruling that the plea of plene administravit could not be maintained, and that the defendants were liable to the daughter in these proceedings. Without a decree of distribution, the administrator paid pver to the testator’s sisters, whom he supposed to be the heirs of the testator, the residue of the estate in his hands, after payment of debts, and various charges and expenses. It turned out about a year after that they were not the heirs, and that the daughter, for whose benefit this suit is brought, was the sole heir, and was entitled to such residue. Shortly after the distribution, and before he knew of the daughter, the administrator presented to the Probate Court an account, in which he credited himself with the amount paid to the supposed heirs. This was allowed by the Probate Court. But it is clear that the action of the Probate Court in allowing it did not legalize the payments to the supposed heirs. Granger v. Bassett, 98 Mass. 462, 469. Afterwards, upon petition of the daughter, it was ordered by this court “ that the account of said administrator be reopened, and said administrator be charged therein with all sums of money therein credited to him as paid to the alleged heirs of the testator.” As the matter stands now, therefore, whatever might have been the result had the distribution been made in good faith under the decree of the Probate Court, the estate is still in his hands, and has not been fully administered.

Exceptions overruled.