Smith v. Fellows

• Decision Date: 05 April 1881
• Citation: 131 Mass. 20
• Parties: Mary W. Smith v. Stephen Fellows, administrator
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

131 Mass. 20

Mary W. Smith v. Stephen Fellows, administrator

Supreme Court of Massachusetts

April 5, 1881

Argued October 27, 1880

Bristol.

Exceptions overruled.

M Reed, for the defendant.

J. M Morton, Jr., for the plaintiff.

Colt, J. Endicott & Field, JJ., absent.

OPINION

Colt, J.

The plaintiff, by the will of her husband, who died in 1874, was given the use of a portion of his real estate, and an annuity of $ 1000 during life, to be paid from the income of all his property. By the last clause in the will, the residue of his estate, real and personal, was given to his daughter, after the payment of debts, expenses and "the legacies hereinbefore mentioned." There were no trustees named in the will, and none have been appointed by the Probate Court. Upon the resignation of the executor, the defendant was appointed, on February 18, 1876, administrator de bonis non with the will annexed, and paid the plaintiff her annuity for the three years preceding 1879. This action of contract is brought to recover the annuity due in the year last named; and it is agreed that the gross income of the testator's estate for that year was more than sufficient to pay it. The judge found for the plaintiff, and the case comes before us on the defendant's exceptions.

It is objected that the action cannot be maintained against this defendant, because, as administrator de bonis non, he is not in law charged with a trust in favor of the plaintiff, and is under no obligation to pay the annuity. But it is settled that where no trustee is named, and the will imposes duties upon the executor which are ordinarily performed by trustees, the performance of such duties will be required of the executor until his account is rendered, and the obligation transferred to a trustee duly appointed. Saunderson v. Stearns, 6 Mass. 37. Thus, where the will directed the executor to invest personal estate in public stocks, and apply the income in a particular manner, it was decided that the duty devolved on the executor as such. Hall v. Cushing, 9 Pick. 395. And so, where the will directed the income of a sum of money to be paid to a person during life, and no trustee was appointed. Dorr v. Wainwright, 13 Pick. 328.

In the case at bar, no account of administration appears to have been rendered in the Probate Court, and the estate is still unsettled in the possession of the defendant as administrator. As a general rule, the duties of an executor, resulting from the nature of his office, and charged upon him as executor, devolve on an administrator de bonis non with the will annexed, when it does not appear from the will, or from the nature of the duty imposed, that a personal trust or confidence is reposed in the executor. Farwell v. Jacobs, 4 Mass. 634. Pinkerton v. Sargent, 112 Mass. 110. Until the estate is settled, the administrator with the will annexed holds it subject to the provisions of the will, and is liable to an action at law, brought to recover a legacy or annuity payable under its provisions. Farwell v. Jacobs, above cited. It is expressly provided by statute that, when an annuity, or the income of any fund, is by will given to or in trust for the benefit of a person for life, he shall be entitled to demand and receive the same from and after the decease of the testator. Gen. Sts. c. 97, §§ 22, 23.

The defendant offered to prove that the income of the estate in his hands had...