Hume , 130 Me. 338 ( 1931 )

Barnes, J.

This case comes from the Supreme Court of Probate, upon exceptions to a decree dismissing appellant’s petition for annulment of allowance of a probate account.

In 1924, upon the death of William S. Hume, the partnership of S. B. Hume & Son was dissolved, and Charles W. Hume was duly authorized to administer and close its affairs as surviving partner.

In the following year, and before administration was complete, Charles W. Hume died, and Edwin B. Jonah, defendant here, and one George S. Hume were appointed administrators of the partnership estate. In 1929 George S. Hume died and administration was taken out in his estate; Mr. Jonah proceeding with the administration of the partnership.

Among the heirs at law of the deceased Charles W. Hume is Seward L. Hume, the present plaintiff. July 8, 1930, the first and final account of Mr. Jonah, the survivor of the administrators of the estate of the partnership, was allowed; and on November 10 of that year, plaintiff, as an heir at law and next of kin of said Charles W. Hume, filed a petition in the Probate Court, praying for an annulment and reversal of the decree allowing the account of the partnership estate, alleging as reasons for the desired action that there were certain errors and mistakes in such account, and that he has a pecuniary interest in the account which is diminished to his detriment because of the errors therein, so that he is aggrieved by the allowance thereof.

This petition was dismissed at the Probate Court held in December, 1930, and subsequently plaintiff’s appeal from the decree of dismissal was likewise dismissed in the Superior Court. From the latter the case comes up to this court, upon exceptions to the decree dismissing the petition.

Plaintiff argues that the dismissal was an error in law, because he says that he is a person aggrieved, to whom right of appeal is given by Sec. 31, Chap. 75, R. S., from denial of his petition, and, secondly that he is an heir, and hence may require the administrator to render an account.

Plaintiff has a direct and enforceable interest in the estate of Charles W. Hume, a former member of the partnership.

Defendant, as survivor of the administrators of the partnership estate is charged with the duty of rendering a true account of his receipts and disbursements as administrator and of distributing the surplus of the estate in his hand, if any, according to law.

But, until he shall have performed his full duty, or have been regularly superseded, the administrator of the estate of the late Charles W. Hume is the only party who has access to the court of probate to require of the survivor of the administrators of the partnership estate any accounting.

“Ordinarily the widow and legatees of a deceased partner cannot act directly against the surviving partners but must compel the executor or administrator to act for them.” 20 R. C. L., 1004, par. 242; Valentine v. Wysor, 123 Ind., 47, 23 N. E., 1076, 7 L. R. A., 788.

The remedy of such is to compel the representative of decedent to account or have him removed. Harrison v. Righter, 11 N. J. Eq., 389; Walling v. Burgess (Ind.), 7 L. R. A., 481, and note.

Exceptional cases arise, and relief is provided where fraud is proved, or collusion between the representatives. Such conditions are not alleged here.

It is not to be assumed that the administrator, upon whom is the immediate liability of accounting, is so neglectful of his own interest as to fail to appeal in proper cases. Woodbury v. Hammond, 54 Me., 332.

The administrator of the decedent has, until his service is ended, the only direct interest that authorizes appeal. Tuxbury’s Appeal, 67 Me., 267.

Exceptions overruled.

Decree below affirmed.