Waterman v. Dockray , 78 Me. 139 ( 1886 )

Virgin, J.

Debt on what purports to be the penal part of a probate bond, executed (with sureties) by the executrix of the last will and testament of James It. Dockray to this plaintiff, described as "judge of probate of wills,” and payable to him or his successor. Instead of craving oyer of the conditions of the bond and pleading thereto, the defendants have demurred to the writ and declaration.

The action is in the name of the obligee, the writ alleging, however, that the "suit is prosecuted by Lewis Pierce, administrator de bonis non with the will annexed, of the estate of James E. Dockray.”

While an administrator de bonis non administratis is understood in general terms to be the successor of the executor, still he derives his title directly from the testator and not from the executor. Am. Board’s Appeal, 27 Conn. 344. On his appointment there vests in him, as is indicated by his commission and official designation, title only to the unadministered property of the testator, in trust for those to whom it belongs. Therefore, in the absence of any statutory provision to the contrary, he has no recourse against his official predecessor for devastavit or maladministration, the remedy therefor being reserved to the creditors, legatees and distributees directly; the executor being responsible, in general terms, to his successor only for the goods, effects and credits which were of the testator at the time of his decease, and remain unadministered, that is, in specie, unaltered or unconverted by any act of the executor or the proceeds thereof not mixed with the latter’s own money. Potts v. Smith, 3 Rawle, 361; S. C. 24 Am. Dec. 359; Sch. Exrs. & Admrs. § § 408 et seq.; Wms. Exrs. 915 el seq.; Beall v. New Mexico, 16 Wall. 535, 540; U. S. v. Walker, 109 U. S. 265. Though in several of the states statutory provisions allow an administrator de bonis non to call for a full accounting by his predecessor and resort to an action on his bond. Cases supra and notes, and an elaborate note in 24 Am. Dec. 379-390.

There are no such liberal statutory provisions in this state. E. S. c. 64, § § 20-24; c. 87, § § 4, 5, 6.

Being confined to the record, we have no means of knowing for what purpose the administrator de bonis non is seeking to maintain this action. He is officially interested in the defendant’s bond to the amount of the unadministered estate which she holds, if any, for such property vested in him in trust for those' to whom it belongs, legatees or creditors. Being " interested in his official capacity,” he had a right to originate a suit on such bond without applying to the judge of probate, provided " his interest has been specifically ascertained” as provided in R. S., c. 7-2, § 10, and this should be alleged if such preliminary action has been taken; and if not, the action can not be maintained under that section. Nor could he maintain the action under B.. S., c. 72, § 15, for no authority by the judge of probate is alleged, which that section makes essential. Nor can the administrator de bonis non prosecute the action for Am mi Mitchell, although the latter might. Assuming, therefore, that the defendant’s bond is a statute probate bond, the demurrer must be sustained, and the plaintiff may amend his writ and declaration upon payment of costs from the time when the demurrer was filed.

Demurrer sustained.

Petees, C. J., Walton, Libbey, Foster and Haskell, JJ., concurred.