Choate v. Arrington

• Decision Date: 09 January 1875
• Citation: 116 Mass. 552
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: George F. Choate, Judge of Probate, v. Samuel W. Arrington & another

116 Mass. 552

George F. Choate, Judge of Probate, v. Samuel W. Arrington & another

Supreme Court of Massachusetts

January 9, 1875

Argued November 5, 1874 [Syllabus Material]

Essex. Contract on a bond given by Samuel W. Arrington as principal and John McCormick as surety, conditioned that said Arrington, who had been appointed executor of the will of James Arrington, should administer the estate of the testator according to law, and render an account. The breach alleged was that the executor had not administered the estate according to law, and had also failed to account. The defendants were defaulted, and the case was sent to an assessor, who made a report in substance as follows:

James Arrington died July 19, 1866, leaving a will and codicil which were admitted to probate in October, 1866. He devised the residue of his property to trustees in trust to pay so much of the income to his wife as should be sufficient to support her and his minor children. On March 5, 1867, the defendant Arrington gave a bond in the usual form in the sum of $ 25,000, with John Hurley and James J. Buckley as sureties.

On May 6, 1867, he filed an inventory, by which it appeared that the real estate of the testator was appraised at $ 18,100, and the personal estate at $ 38,095.87. Arrington, immediately upon filing his bond, began to collect the rents of the real estate, claiming them and giving receipts therefor as executor, and to collect the dividends and interest upon the stocks and other personal securities belonging to the estate and continued to do so up to and for some time after the appointment of a trustee under the will. On March 3, 1868, the executor filed an account, in which the rents collected from the real estate were credited, and by which it appeared that there was then a balance in the hands of the said executor amounting to $ 37,326.37. No other account was ever filed by him, although he was required to file a further account by a decree of the judge of the Probate Court made on November 12, 1872.

In November, 1870, John Hurley, one of the sureties upon the bond above referred to, petitioned to be discharged from further liability thereon, and on December 6, 1870, a decree was made by the judge of probate, so discharging him; and thereupon, on December 16, 1870, Arrington filed the bond in suit. No inventory was taken at the time of filing this bond.

Arrington had in his hands, at the time of filing his account, the sum of $ 37,326.37. Since his appointment he has collected rents from said real estate amounting to $ 14,573.40, of which $ 8,147.27 were collected before, and $ 6,426.13 after, December 16, 1870; and from other personal securities he collected as income the sum of $ 8,628.17 before, and $ 3,621.50 after, that date. In December, 1872, a trustee was appointed under the will, and after that date Arrington transferred to the trustee stocks and securities amounting at the prices at which they were appraised in said executor's inventory, and in part in said trustees' inventory, to the sum of $ 23,624.20.

On these facts the assessor found that there was due and payable from said Samuel W. Arrington upon his bond the sum of $ 33,430.86, being the amount of the balance of his account, with the income of the real and personal estate less the rents and dividends credited in the account, and less the amount at which the personal securities transferred to the said trustee were appraised, and assessed damages against him in that amount. Arrington, though duly notified, was not present at the hearing before the assessor, and offered no evidence.

The plaintiff contended that the executor's inventory filed March 6, 1867, and the account of March 3, 1868, were evidence tending to show the amount of property for which McCormick was liable, and was at least evidence tending to show the amount of property in the executor's hands when McCormick became his surety, but for the purposes of this case the assessor ruled that the testimony was not competent for either purpose.

The plaintiff also contended that the evidence of the receipt of the various sums of money by Arrington after he became executor, as income of the real and personal estate, as above set forth, both before and after McCormick became surety, was admissible as evidence against McCormick to show the amount for which he was liable, but this evidence was also rejected as incompetent for that purpose.

The plaintiff also offered evidence tending to show that certain definite portions of the property which originally came into the possession of Arrington as executor, remained in his possession when and after McCormick became surety, and had not been since accounted for, contending that McCormick was responsible therefor; and that the burden of proof was on him to show that such property had been administered according to law, and that he was liable in the absence of any such testimony; but the testimony was rejected, and it was ruled for the purposes of the hearing, that McCormick was not responsible for the application of that property which originally came into the possession of the executor before he became surety, although it was still in his hands at and after that time, but only for such new property as came into said Arrington's possession after he became surety; and that the burden of proof was upon the plaintiff to show that he had suffered damage, and that the burden was not sustained by showing that property for which McCormick was responsible came into the possession of the executor and had not since been delivered to said trustee upon his demand; but that it was incumbent upon the plaintiff to show by further evidence that such property had not been administered according to law and the provisions of the testator's will. The assessor found against McCormick in nominal damages, and the plaintiff excepted to all the above rulings.

At the trial in this court, Colt, J., reserved the case for the consideration of the full court upon the pleadings and the assessor's report. "If the rulings of the assessor were correct, judgment is to be entered upon the report; if otherwise, the case is to be recommitted to the assessor for further hearing of the parties."

Case Recommitted to the assessor.

S. B. Ives, Jr. & R. C. Lincoln, for the defendants, were first called upon.

J. A. Gillis, for the plaintiff.

Wells J. Ames & Dev...