First Nat. Bank & Trust Co. v. McCoy

Decision Date02 March 1938
Citation198 A. 183,124 Conn. 111
PartiesFIRST NAT. BANK & TRUST CO. v. McCOY et al.
CourtConnecticut Supreme Court

Appeal from Superior Court, New Haven County; Ernest A. Inglis Judge.

Action upon an executor's bond by the First National Bank &amp Trust Company, administrator de bonis non, cum testamento annexo, of the estate of Laura B. Hubbard, against David J McCoy and others. Judgment for plaintiff for $133, and plaintiff appeals.

Error and a new trial ordered.

Samuel J. White and Robert J. Woodruff, both of New Haven, for appellant.

Morris B. Straka, of New Haven, for appellee McCoy.

Ellsworth B. Foote, John Clark FitzGerald, and David E. FitzGerald, all of New Haven, for appellees Walsh and others.

Argued before MALTBIE, C.J., and HINMAN, AVERY, BROWN, and JENNINGS, JJ.

HINMAN, Judge.

The complaint alleged that the named defendant was executor of the will of Laura B. Hubbard and, with the other defendant as surety, gave the bond in suit; that he received assets of the estate (found in this action to amount to $4714.46); that he failed to render an accounting to the court of probate, was removed as executor and the plaintiff appointed administrator d. b. n., c. t. a.; that the estate was entirely wasted by this defendant so that no assets have come into the hands of the plaintiff; and that this action is brought for the benefit of unpaid creditors and legatees. The defendants each filed, in addition to an answer raising the general issue, a special defense setting forth numerous payments alleged to have been made to creditors and legatees and for expenses which were alleged to have been necessary in the proper administration of the estate. On the trial the court, under this defense, determined as to the propriety of each of the payments so alleged and allowed credits for expenditures amounting to $4,827.80, being $113.34 in excess of the amount of assets received by the executor, and rendered judgment for the plaintiff for $133.80 only, being the amount of two unpaid claims which it held should have been satisfied prior to the payments made to residuary legatees.

Section 5669 of the General Statutes provides that, in an action on a penal bond, ‘ such damages only shall be assessed as are equitably due, and judgment shall not be rendered for the whole penalty, unless it shall appear to be due.’ The trial court construed this provision as meaning, as applied to the present action, that credits to the defendant were not to be confined to expenditures authorized or approved by the court of probate, but that the superior court could and should, in this action, determine what expenditures had been justifiably made by the executor, and accordingly allowed the defendant credits for payments which it found had been reasonably incurred for the proper administration of the estate. The correctness of this construction and of the resultant ruling is decisive of the present appeal.

The object of the quoted provision of section 5669 of the General Statutes, and the extent of its operation, is that obligors upon penal bonds shall not be held to pay the whole penal sum specified, regardless of what may be justly due, but only the amount so due. State v. Thresher, 77 Conn. 70, 79, 58 A. 460; New Britain v. New Britain Telephone Co., 74 Conn. 326, 331, 338, 50 A. 881, 1015. We find nothing in the statute or in the cases in which it has been involved which liberalizes or affects the established rules pertaining to determination as to what sums are in fact justly due.

Under the complaint in the present action, the amount recoverable primarily would be the value of the assets received by the named defendant as executor, which were alleged to have been entirely wasted by him. In order to reduce the damages, it was incumbent upon the defendants to show disbursements allowable as credits against the ascertained amount of the assets with which the named defendant was chargeable as executor. Cleaveland, Hewitt &amp Clark, Connecticut Probate Law and Practice, p. 100; Prindle v. Holcomb, 45 Conn. 111; State ex rel. Hartford-Connecticut Trust Co. v. United States Fidelity & Guaranty Co., 105 Conn. 230, 239, 135 A. 44. It was to this end that the defendants filed the special defense setting forth payments alleged to have been made by the executor for and on account of the estate. In Prindle v. Holcomb, it was said (45 Conn. 111, at page 122), and often has been repeated in substance in other cases, that executors and administrators are charged with the duty of settling estates, over which courts of probate have sole and exclusive jurisdiction. It is important that the probate records should show all the proceedings relating to such settlements; hence the propriety and necessity of requiring administrators' accounts to be settled in that court.’ See, also, Atwater v. Barnes, 21 Conn. 237, 242, 243. In Wattles v. Hyde, 9 Conn. 10, 14, it was held that, in an action on a probate bond, the executor or administrator could not bring in by way of set-off claims-in that case for labor, time, and expenditures in raising produce upon a farm in his charge as executor-which are properly cognizable by the court of probate. This court has uniformly refused to allow the...

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