Cleaves v. Dockray

• Citation: 67 Me. 118
• Parties: NATHAN CLEAVES, judge of probate, v. KATE H. DOCKRAY, executrix, et als.
• Decision Date: 18 July 1877
• Court: Supreme Judicial Court of Maine (US)

67 Me. 118

NATHAN CLEAVES, judge of probate, v. KATE H. DOCKRAY, executrix, et als.

Supreme Judicial Court of Maine.

July 18, 1877

ON AGREED STATEMENT.

DEBT ON BOND, originally brought in the name of John A. Waterman judge of probate for Cumberland county, and prosecuted in the name of his successor in office, whose name was brought in by amendment.

The case was submitted to the law court upon the following agreed statement, to render such judgment as the law and facts require:

James R. Dockray died October 4, 1868, leaving a will in four items, which gave four children one dollar each, and then stated; " My reasons for giving the above small amount to my children are that they wrongfully and fraudulently obtained from me my property situated on the corner of Fore and India street, in Portland. Fifth, I hereby give to my wife, Kate H. Dockray, all of my property both real and personal, of every name and nature that I die possessed of. Sixth, I hereby appoint my wife, Kate H Dockray, sole executrix of this my will." This will was admitted to probate. On appeal taken, the decree of the judge of probate was affirmed by the supreme court.

Pending the appeal, the defendant, Kate H. Dockray, was appointed executrix and gave the bond in suit, following the form prescribed in R. S., c. 64, § 9, of the present revision, for ordinary executors instead of the form in § 10, in case of an executor who is a residuary legatee, as this defendant was in effect though not in terms. No other bond was given. Letters testamentary were issued December 15, 1868, and she seasonably returned an inventory of the estate. A suit was commenced against her as executrix by Ammi R. Mitchell September 24, 1870, on which judgment as against an insolvent estate for $5,537.77 debt and $141.85 costs was recovered at the April term, A. D. 1874. The estate was represented insolvent November 4, A. D. 1873, and commissioners of insolvency were appointed. This commission was returned and extended, which extended commission expired January 1, 1875 and was duly returned, one claim for $391.58, having been proved and allowed under it. The commission was accepted and ordered to be filed and recorded, the first Tuesday of June, A. D. 1875. Mitchell's claim under his judgment, was duly filed in the probate court, and ordered to be added to list of debts. On May 5, 1875, no account having ever been settled, it was ordered by the probate court that said Kate H. Dockray should be cited to appear before the probate court on the third Tuesday of the same month, to show cause why she should not be cited to settle her account.

Personal service was duly made, and on the third Tuesday of May, there being no appearance on the part of said Kate, it was ordered that she render her account on oath, into said court, on or before the first Tuesday of June, 1875. Due service was made of this order, and on the said first Tuesday of June, the said Kate not appearing nor complying with the same, it was ordered that the petition and order of court thereon be recorded and filed.

On the third Tuesday of June, 1875, Mitchell filed his petition in the probate court, setting out that said Kate H. Dockray had been duly cited to render an account and settle the said estate according to law, but had neglected and refused to do so, and had mismanaged the estate, and praying that she be removed from said trust and that he might be authorized to bring an action upon the bond in the name of the judge of probate. A hearing was ordered on this petition on the first Tuesday of July; and on the third Tuesday of July, said Kate having appeared and been heard, it was decreed that the facts alleged having been fully proved, said Kate should be removed from her trust, and that Mitchell be authorized to bring this action, copies of all which proceedings are annexed and made parts of this statement. Mrs. Dockray appealed from this decision of the judge, and the appeal was entered at the October term, 1875, of the supreme court, and dismissed at the same term.

A petition that Lewis Pierce be appointed administrator de bonis non cum testamento annexo was filed the first Tuesday of November, A. D. 1875, was opposed by Mrs. Dockray and he was appointed the first Tuesday of March, A. D. 1876, until which time, after the removal of Mrs. Dockray, the office was vacant.

The amount of the estate realized by Mrs. Dockray is $8,318.22; she has paid out for charges and expenses of administration $1,029.26, as appears by an account filed by her and her sureties in the probate court on the first Tuesday of April, 1876.

There has been no order of distribution among the creditors of said estate, nor from the time of the removal of Mrs. Dockray to the time of commencing this suit was there any new administrator appointed, nor has there been any decree directing her to pay or turn over the whole or any part of said estate to any person.

The plea was non est factum with a brief statement. 1st. That said Waterman's term of office has expired, and Hon. Nathan Cleaves is his successor as such judge, and that this suit cannot be maintained in the name of said Cleaves, as the bond in suit is a common law bond and not a statute bond. 2nd & 3d. That it is not a statute bond, because said Dockray was residuary legatee, was so constituted and appointed by the will, and the bond is not in conformity with the statute in such case provided; that therefore the defendants claim that damages, if any are to be assessed by the court according to what is justly due, not exceeding the penalty of the bond. 4th. That no person has been appointed to whom she could pay or turn over the estate. The specifications closed with a general statement of performance and no damage.

J. D. Fessenden, for the plaintiff.

The bond is a statute bond.

The trust was committed to the executrix under R. S., 1857, c. 64, § 31. (R. S., § 36.) It was the proper bond under the circumstances. The opinion of the judge of probate is entitled to weight on this point.

The provision of R. S., c. 72, § 5, regarding suits of this kind applies to any kind of probate bond, and is broad enough to cover this case.

Breach was sufficient to maintain this action. Damages are actual, not nominal. The case shows a large amount of property in the hands of the executrix, which she pertinaciously refuses to pay over to the creditors. Her account filed on compulsion after her removal from her office, leaves a large balance in her hands after deducting all the allowance that she claims. This suit is the creditors' only remedy to recover this. There is no claim that she has turned over this balance to her successor.

Damages are fixed by §§ 15 and 18 of c. 72. They are the amount of personal property realized, viz: $8,318.22. Williams v. Esty, 36 Me. 243.

The fourth specification of special matter alleges that " no person has been appointed to whom she could pay or turn over the estate." The case finds that the writ was dated August 14th; that the order for her removal was made on the third Tuesday of July, 1875; that her appeal, (allowed so far as relates to her removal,) was entered and dismissed at the next October term; that in November following, a petition for the appointment of a new administrator was filed, and that he was appointed against her opposition in the November following, and that the office was not vacant when the suit was commenced, nor is it now.

But the right to maintain this suit does not depend upon the removal of the delinquent or the appointment of a successor. The judgment is recovered in trust by the judge, and he can order the delinquent to charge herself with the amount if in office, or assign it to his successor to be collected and accounted for. R. S., c. 72, § 17. Williams v. Esty, supra.

W. L. Putnam, for the defendant, Milliken.

Had the bond in suit been the same as provided by law for residuary legatees, there...