Buttrick v. Snow

• Decision Date: 03 December 1931
• Citation: 178 N.E. 620,277 Mass. 401
• Parties: BUTTRICK v. SNOW et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

277 Mass. 401

178 N.E. 620

BUTTRICK

v.SNOW et al.

Supreme Judicial Court of Massachusetts, Middlesex.

Dec. 3, 1931.

Appeal from Superior Court, middlesex County; Whiting, Judge.

Suit by David Buttrick against Louida W. Snow, administratrix of the estate of Walter H. Snow, deceased, and others. From an interlocutory decree sustaining a demurrer and a final decree dismissing the bill, plaintiff appeals.

Final decree modified, and, as modified, affirmed.

Albert W. Wunderly, of Boston, for appellant.

Chas. A. McDonough, of Boston, for appellee Louida W. Snow.

FIELD, J.

This is a bill in equity brought in the superior court by a mortgagee of the undivided interests of the defendants Wallace Snow and E. Elbridge Snow in certain real estate formerly owned by Walter H. Snow, deceased, intestate, of whose estate the defendant Louida W. Snow is administratrix. The defendant administratrix demurred. An interlocutory decree sustaining the demurrer and a final decree dismissing the bill without costs were entered. From both decrees the plaintiff appealed.

The bill alleges that the intestate died February 9, 1928, ‘leaving as his only heirs at law, his widow * * * [the defendant administratrix], and his two sons,’ the other defendants, and seized of certain real estate; that the widow was duly appointed administratrix March 18, 1928; that on July 23, 1928, the defendants E. Elbridge Snow and Wallace Snow, being indebted to the plaintiff, executed and delivered to him a note for $3,000 and a mortgage of their interest in said real estate, the mortgage being duly recorded; that on July 23, 1930, the mortgage became due and payable but the mortgagors failed to pay the debt secured thereby and still owe the principal sum, with interest, amounting in the aggregate to $3,525; that on a petition for license to sell the real estate of the intestate, in which the plaintiff was named as mortgagee thereof under a mortgage from the heirs at law, a decree was entered February 8, 1929, licensing the administratrix to sell said real estate at public auction; that under the power so conferred she sold the real estate on December 3, 1929, for $3,300; that the debts of the intestate amounted to not more than $2,000 and charges of administration to not more than $900; that the defendant administratrix has collected approximately $4,650 in assets belonging to the estate, including said sum of $3,300, and that after paying from said sum of $3,300 so much of the debts and expenses of administration as might lawfully be paid therefrom there was a balance remaining of approximately$1,650. The bill alleges further that upon the sale of the real estate ‘the lien of the said mortgage attached to the funds realized at the sale and the administratrix was bound to see that the proceeds of the sale were paid to the person to which they belonged’; that the plaintiff is entitled under his mortgage to receive two thirds of the balance of the money received for the real estate; that the defendant administratrix ‘although called upon by the plaintiff to account for and pay over to him the sum to which he is so entitled, neglects and refuses to so account or to pay over money to the plaintiff,’ and that the plaintiff has no adequate remedy at law.

The prayers are (1) that ‘an account be taken of the sums of money received by the said administratrix as assets of the estate and her expenditures for the debts and expenses of administration thereof’ and that ‘the amounts for which she is chargeable therein be ascertained’; (2) that, ‘upon said accounting being taken,’ the defendant administratrix ‘be adjudged and decreed to be a trustee for the benefit of the plaintiff or of such other person or persons as appear to have an interest in such sums of money as are found to be due the plaintiff or any other person and that she be ordered to pay such sums found to be due to the persons to whom it belongs,’ and (3) for general relief.

The grounds of demurrer, in substance, are that the defendant administratrix is accountable for the proceeds of the sale of the real estate only in the probate court; that if the ‘plaintiff has any lien, legal or equitable,’ on any part of the proceeds of the sale of the real estate ‘such lien attaches only to any surplus found and determined by the probate court to belong to the two heirs at law upon whose share the plaintiff held a mortgage,’ and the power to pass upon the defendant administratrix' accounts and to determine the amount of such surplus, if any, is in the probate court; that the superior court ‘ has no jurisdiction to pass upon the accounts of the defendant as administratrix,’ and that the plaintiff ‘is not entitled to the relief prayed for, or to any present relief in equity.’

On the allegations of the bill the real estate in question was sold under a license granted by the probate court in proceedings to which the plaintiff was a party. The general statute relative to sales of real estate under license in the probate court provides that ‘the net proceeds of such sale, after deducting the expenses thereof and such amount as may be required for the payment of debts, legacies and charges of administration, in consequence of a deficiency in the personal property, shall be paid over to the person or persons who would have been entitled to such real estate and in the proportions to which they would have been entitled had it not been sold.’ G. L. c. 202, § 19, as amended by St. 1923,...