Lawton v. Corrigan , 242 Mass. 145 ( 1922 )

Rugg, C.J.

This is a scire facias by a creditor to secure a. new execution after execution has once been awarded on the bond of an administrator. R. L. c. 149, § 34. G. L. c. 205, § 34. The court having found after hearing that the bond declared on had become forfeit and that the plaintiff was entitled to judgment, the case was referred to an assessor to determine and report the amount for which execution should issue. The assessor made a full report and alternative findings. Thereafter the plaintiff filed a motion that execution issue for the larger amount found by the assessor, with costs. The motion was allowed.

An assessor is not a species of auditor but a different kind of judicial officer. Speirs v. Union Drop Forge Co. 180 Mass. 87, 89. Forbes v. Allen, 240 Mass. 363, and authorities collected in each case. Without so deciding it is assumed in favor of the defendants that, under the form of report here made in a case like the present, an appeal lies, although the safer course is to bring the case here by exceptions or report. See De Propper, petitioner, 236 Mass. 500, and cases collected.

Arnold D. Amoroso is the assignee for a valuable consideration of a judgment obtained by one Benfield, a creditor of the. estate of the deceased Attilio Amoroso, of which the defendant. Corrigan is administrator. The deceased intestate died in 1913, leaving real estate and personal property, the latter being insufficient to pay his debts and both probably insufficient if sales of the real estate had been enforced for a prompt settlement of the estate. Arnold D. Amoroso, his eldest son, conveyed his share in the real estate to his mother, as did also two of his brothers,, the mother being guardian of several remaining children. About one half of the consideration for the assignment of the Benfield judgment was paid by Arnold out of money belonging to himself and the other half was furnished to him by his mother, who had received an aggregate of about $1,350 during 1917 and 1918 out of his pay as an officer in the army upon an understanding that she was to take care of it and use it if she needed it; otherwise, it was to be his. There were in the hands of the widow from time to time ample funds to pay the Benfield judgment, p^iid to her from sales of real estate of the intestate but she was maintaining a home for herself and all her children on the homestead of her deceased husband and did not use it to pay that judgment. This circumstance does not affect the right of Arnold D. Amoroso to collect the amount of the judgment of which he is the assignee.

The amount for which execution is to issue is to be determined in equity. R. L. c. 149, § 31, now G. L. c. 205, § 31. Harmon v. Weston, 215 Mass. 242, 246. There are no principles of chancery law which prevent Arnold D. Amoroso from receiving the full amount of his judgment. He had no legal interest in the real estate of his deceased father at the time. For aught that appears the money which he received from his mother toward the purchase of the judgment was a return of his own money or the payment of a debt recognized as due from her to him. See Cohen v. Levy, 221 Mass. 336. It cannot be inferred on this record that the money advanced to him by his mother was from the funds received by her from sales of real estate of her intestate husband. That is all left to conjecture.

The administrator has made default in the condition of his bond in that he has at no time filed and had allowed an account showing a complete distribution of the estate of the deceased. It has been found by the assessor that he did not take proper steps to sell sufficient real estate to pay the Benfield judgment, and has allowed money which could have been used for that purpose to be diverted to other purposes, and that he was negligent and obstinate in some respects in his manner of handling the estate. There are no equities as between Arnold D. Amoroso and the administrator which render it inequitable that execution now issue for the full amount due on the judgment.

Order for execution affirmed.