Dallinger v. Morse , 208 Mass. 501 ( 1911 )

Sheldon, J.

The fundamental question in this case is as to the jurisdiction of the Probate Court to grant in 1906 original administration upon the estate of Nellie E. Morse, who had died in 1874. R. L. c. 137, § 3. It is provided by § 4 of the chapter just cited that “if administration has not been taken on the estate of a testator or intestate within twenty years after his decease, and any property or claim or right thereto remains undistributed or thereafter accrues to such estate and remains to be administered, original administration may for cause be granted, but such administration shall affect no other property.” Nutt’s petition for the grant of administration averred that there were funds in the hands of the State treasurer amounting to about $1,000 which remained to be administered, and which the State auditor was unwilling to pay to any one but an administrator ; and this must now be taken to have been proved in the Probate Court. The averment of the petition, though not in the precise statutory form, was fully equivalent thereto; for money in the hands of the State officials could not have been distributed within the meaning of the statute. The strict rules of common law pleading are not usually applied to proceedings in the probate courts. Codwise v. Livermore, 194 Mass. 445.

The defendant contends that the word “ undistributed ” means only undistributed by an administrator. But that is limiting too narrowly the language of the Legislature. They have given the power to grant administration in all cases where property of an intestate “ remains undistributed,” that is, has not been actually divided among and put into the control of the persons entitled as next of kin. The limitation contended for would prevent the distribution of the personal property in a case like the present one, or in any case in which, as sometimes has been done, the next of kin have amicably divided among themselves all the known property of an intestate without the formality of an administration, and after the lapse of more than twenty years it is discovered that personal property to a considerable amount has been overlooked and “ remains undistributed.”

We think it plain that the Probate Court had jurisdiction to make the appointment in 1906. Accordingly it had jurisdiction, upon the death of the original administrator without having administered upon this fund, to appoint the plaintiff to be administrator de bonis non. Bancroft v. Andrews, 6 Cush. 493, 495.

As there was jurisdiction to make these appointments, their validity is not open to collateral attack in this action. McCooey v. New York, New Haven, & Hartford Railroad, 182 Mass. 205. Tobin v. Larkin, 187 Mass. 279. Connors v. Cunard Steamship Co. 204 Mass. 310. And if this were not so, we see no reason to doubt that the action of the Probate Court in making these appointments was properly taken and was correct.

The judgment for the plaintiff must be affirmed.

So ordered;