Tuxbury , 1877 Me. LEXIS 49 ( 1877 )

Barrows, J.

The surety who has guarantied his principal’s fidelity and accuracy to the probate court and thereby procured the trust to be committed to him, must, out of proper regard for the rights of other persons interested, be content to let that principal represent him in that forum in the adjustment of the trust accounts while he is capable of doing it.

The principal, and he aloné, can properly be said to be both directly and injuriously affected by an erroneous decree requiring him to account for, more than he admits to be and more than there is in his hands. It is the amount of the principal’s liability which is ascertained by the decree, and he is primarily and ultimately responsible for that amount unless he appeals from the decree. The surety can be holden only by and through an action at common law upon the bond, to which he would have a full and complete defense if his principal collusively suffered a surcharge in his accounts for the benefit of the parties interested in the estate, to the detriment of himself and his sureties. Baylies, Judge, v. Davis, 1 Pick. 206.

But it was early seen that the business of probate courts would be seriously and uselessly embarrassed unless it was held that those only who had a direct as well as a pecuniary interest in the subject of the decree were entitled to appeal. See Downing v. Porter, 9 Mass. 386, where one of the heirs of a residuary legatee was denied the right to appeal because the claim should have been made through the administrator of the legatee, representing all the heirs. In like manner as the administrator in that case represented the heirs entitled to the fund through his intervention, the accounting administrator here must represent his sureties, because he is the one directly affected by the decree, and they only through him and by means of a suit at common law. All their substantial rights are guarded. If the administrator here has no cause to appeal, this appellant has none. If, on the contrary, the administrator or his sureties supposed he had good-reason to question the correctness of this decree it would have been as easy for this appellant to have enabled him to prosecute the appeal as it was to undertake its prosecution himself. If the administrator in collusion with the parties interested in the estate refuses to permit the prosecution of an appeal in his name in a case where there is an erroneous decree, it would be available to the sureties, as we have already seen in defense of the suit on the bond by 'which their liability is to be established. On the other hand, if he and the sureties are colluding to furnish them a defense on the bond, both he and they must abide the consequences. But fraudulent collusions on either side are not to be presumed. "We refer to the matter only to make sure that the rights of all concerned can be well guarded, while the rule that those only shall be regarded as aggrieved and shall have the right of appeal whom the decree directly affects is adhered to.

This discussion may be deemed superfluous for this court, upon full consideration, decided in Woodbury v. Hammond, 54 Maine, 332, 342, that a surety upon a probate bond could not be considered as aggrieved by a decree respecting the settlement of his principal’s account, because, though pecuniarily, he was not directly interested in the decree. This decision was made in 1866. Five years afterwards the statute, the construction of which was thus settled, went into the new revision unchanged in this particular. This is to be regarded as a legislative adoption of the construction thus given. Cota v. Ross, 66 Maine, 161, 165, and cases there cited. /

We find nothing in the case of Farrar v. Parker, 3 Allen, 556, which wo deem sufficient cause for reversing our own decision thus adopted by the legislature. No good reason is shown there nor here why the appeal should not be taken in the name of the accountant who is directly affected by the decree. The opinion there seems to proceed upon the idea that the surety is more directly affected by the decree in cases of insolvency of the principal than where the principal has the property and means to protect him. But if he is not directly affected by a decree against a solvent principal, he does not become so, because the chances of his being indirectly affected by a decree against an insolvent one are greater. There is no distinction in principle between the case at bar and Woodbury v. Hammond, 54 Maine, 332; and that case must be regarded as decisive of this.

A single additional reason why the appeal in a case of this sort should bo in the name of the accounting party may be referred to. It is with him that the chief knowledge of the facts bearing upon the question of liability ordinarily' resides. He cannot be permitted to screen himself and his sureties by shutting Ms mouth1 and withholding the necessary information. Where, as here, he has taken himself out of the jurisdiction of the court, if one who bound himself for Ms fidelity to Ms trust can sustain an appeal from the probate court in his own name, it might be difficult for the opposite party to furnish the proof which it was the duty of the accounting principal to afford, and which under R. S. c. 82, § 85. he might be compelled to afford upon an appeal taken as it should be in his own name.

Appeal dismissed. Costs for respondents.

Appleton, C. J., Walton, Yirgin, Peters and Libbey, JJ., concurred.