Cowden v. Jacobson
| Decision Date | 26 February 1896 |
| Citation | 165 Mass. 240,43 N.E. 98 |
| Parties | COWDEN v. JACOBSON et al. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
B.W. Potter and H.W. Aiken, for appellant.
George H. Mellen, for appellee.
This is an appeal by an administrator from a decree of the probate court in Worcester county disallowing certain items in his account. At the hearing before the chief justice the appellee desired to contest other items in the account besides those involved in the appeal of the administrator, but the court ruled that it was not open to her to contest other independent items. The appellee does not question now the correctness of the ruling, and we think that it clearly was right. Boynton v. Dyer, 18 Pick. 1; Harris v Harris, 153 Mass. 439, 26 N.E. 1117.
The principal matter in dispute relates to the disallowance of the payment by the administrator of a note held against the intestate at her decease by Walter B. Chase, of Sutton, in this state,--an heir at law. The intestate lived in Connecticut, where she possessed real and personal estate. She also possessed real estate in Sutton. The appellant, who lives in Worcester, was appointed administrator in both states. The next of kin was Walter B. Chase aforesaid, a brother, and one Hattie H. Jacobson, of Portland, Me., a half-sister. By the laws of Connecticut, kindred of the whole blood take to the exclusion of the half blood. There were debts of the intestate in this state consisting of the note to Chase, and of unpaid taxes on the estate in Sutton. During the settlement of the estate in Connecticut the note was presented by Chase to the judge of probate, as it is provided by the Connecticut statutes may be done with claims when the administrator lives out of the state (Gen.St.Conn. § 582), and he, on learning that there was estate of the deceased in this commonwealth, declined to allow it on the same grounds as debts due Connecticut creditors, and the note was not allowed, and does not seem to have been presented again to that court. Subsequently the administrator in Connecticut, having settled his account with the estate in the probate court there, and having in his hands for distribution, as appeared from said account, $1,425.13 in personal estate, was ordered by the probate court, under the statute for such cases made and provided (Gen.St.Conn. § 628), to pay the same to said Chase, as the heir at law, and did so. The estate in Sutton was sold by the administrator pursuant to license from the probate court, and the note was paid out of the proceeds. The appellee, who was a minor, had notice of the petition to sell the real estate in Sutton, and also of the action of the court in Connecticut in regard to distribution, but made no objection to the proceedings until the administrator presented his account for allowance to the probate court of Worcester county.
The appellee contends that the note should have been paid by the administrator out of the personal estate in Connecticut, and she relies on Livermore v. Haven, 23 Pick. 116, and also on Fay v. Haven, 3 Metc. (Mass.) 109, where another question growing out of the same controversy was considered. But in Livermore v. Haven, as was observed in substance, in Prescott v. Durfee, 131 Mass. 477, the question was whether the court, in its discretion, should grant a license, under the circumstances, to sell real estate in this commonwealth for the payment of debts. In this case the license has been granted by a court of competent jurisdiction, after due notice, and the sale has been made and neither those proceedings, nor the validity of the appointment of the administrator, can now be attacked collaterally by the appellee. Pierce v. Prescott, 128 Mass. 140. It does not appear that the payment by the administrator was not made in good faith, or that there was any collusion between him and Chase in regard to the settlement of the estate in Connecticut, or the sale here. If there were collusion or bad faith, the case might stand differently. Stevens v. Gaylord, 11 Mass. 256, 266. The distribution of the estate in Connecticut was made under an order of the probate court, which has not been impeached in any respect. The administrator was bound to comply with it, and, for aught that appears, would have been liable to a suit on his bond if he had failed to do so. Though administrator of both estates, he could not have been compelled to apply the personal property in Connecticut to the payment of debts here, nor have been held accountable for it here. Fay v. Haven, 3 Metc. (Mass.) 114; Wheelock v. Pierce, 6 Cush. 288; Boston v. Boylston, 2 Mass. 384; Hooker v. Olmstead, 6 Pick. 481; Norton v. Palmer, 7 Cush. 523. If it was necessary, in order to justify the payment of the note out of the proceeds of the real estate sold here, for the administrator to show that the creditor had used some diligence to collect the note out of the personal estate in Connecticut, and that he had met with some legal impediment there, we think it sufficiently appears that he had done so. He presented his claim to the proper tribunal,...
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