Forbes v. Allen

• Decision Date: 21 October 1896
• Citation: Forbes v. Allen, 166 Mass. 569, 44 N.E. 1065 (Mass. 1896)
• Parties: FORBES, Probate Judge, v. ALLEN et al.
• Court: Supreme Judicial Court of Massachusetts

166 Mass. 569

44 N.E. 1065

FORBES, Probate Judge,

v.ALLEN et al.

Supreme Judicial Court of Massachusetts, Worcester.

Oct. 21, 1896.

Case reserved from supreme judicial court, Worcester county.

Action by Forbes, probate judge, against Allen and others on a probate bond. Reserved for the opinion of the full court, upon the pleadings and a report which is to be treated as a master's report.

John B. Scott, for plaintiff.

Frank P. Goulding and Burton W. Potter, for defendants.

BARKER, J.

This is a suit under the provisions of Pub.St. c. 143, § 13, under a probate bond made by a principal now deceased and by the defendants as sureties. The cause was reserved for the full court upon the pleadings and a report which is to be treated as a master's report, such judgment and award of execution to be entered as justice may require. Some objections to the admission of evidence are stated in the report, but have not been argued by the objecting party. On March 20, 1883, Herbert F. Allen, the principal obligor, was appointed executor of the will of his deceased father, Luke F. Allen, who died on February 11, 1883, leaving a widow and two sons, Herbert F. Allen and William J. Allen. The will gave legacies to the widow and to Herbert F. Allen, and the residue of the estate to the two sons in equal shares, providing that $10,000 of the share of William J. Allen should be held in trust, and appointing Henry F. Wing and Herbert F. Allen trustees of that trust, neither of whom gave bond as trustee or was appointed by the probate court. As executor the principal obligor came into possession of securities and money belonging to the estate to an amount of more than $50,000, and also of his own unpaid notes to a large amount. He filed no inventory and rendered no account, and, although there were sufficient funds, he paid the widow but a part of her legacy, and did not set apart the trust fund of $10,000. He died testate on April 24, 1893, and the executrix of his will was on July 5, 1893, ordered to render and file his account as executor, but no such account has been filed. There have been substantial breaches of duty on the part of the executor, and breaches of the bond in suit, and judgment must be entered for the plaintiff for the penal sum of the bond. Pub.St. c. 171, § 9. After the death of the original executor, administration of the estate of Luke F. Allen not already administered was granted on June 6, 1893, to Andrew J. Hall and Joseph A. Dodge, and they have in hand as assets of the estate the sum of $5,332.20, after having paid the widow of Luke F. Allen the balance of her legacy unpaid by the original executor; and the report finds that this sum is available to be applied in reduction of the amount of the estate not satisfactorily accounted for by the original executor. On June 13, 1893, Henry F. Wing filed in the probate court his declination of the $10,000 trust, and on June 20, 1893, John B. Scott was appointed trustee of that trust.

It is not contended that the debts of Luke F. Allen, his funeral expenses, or the charges of the administration of his estate have not been paid. The only persons entitled to claim under his will as devisees or legatees were his widow, who was one of the sureties on the bond in suit, and is one of the defendants, and his two sons, Herbert F. Allen and William J. Allen. The legacies to the widow and to Herbert F. Allen have been now fully paid, and the only right in equity to execution upon the judgment to be entered in this suit is in respect of the bequests given by the will to or for the benefit of William J. Allen. When the suit was commenced it seems to have been thought that his trustee or trustees might be entitled to execution in their own names. But at the argument it was conceded that the execution should be issued generally, in the name of the plaintiff, for the value of all the estate of the testator which came to the hands of the original executor, and which, upon the report, is not satisfactorily accounted for, and for interest. See Pub.St. c. 143, § 20, cls. 3, 4. The excess of the bequest to William J. Allen, over the $10,000 to be put in trust, amounted to $20,462.75. Up to the death of the executor on April 24, 1893, he had paid William J. Allen sums aggregating $22,954.49, some of the payments being made in each year. It does not appear that any specific application of any of these payments was made, either by the executor or by William J. Allen. In the year 1883 the latter asked the executor to settle the estate, and continued his requests until 1886, when, upon a request for a final settlement, the executor refused to settle, and he refused again in 1887. William J. Allen had no property except from the estate, and his expenses and those of his family were defrayed from the payments made by the executor to him. To protect himself from being cheated by third persons, on June 5, 1886, he gave to his brother, the executor, a deed and a bill of sale of all his interest in the estate, except in the trust fund, the brother giving back a declaration of trust, stipulating that he should render as often as once in each year an account of his receipts and expenses and charges, and should pay the net earnings or income as often as once in three months to William J. Allen, or to his wife, at the will of Herbert F., and should reconvey or reassign to William J., or to his wife, as Herbert F. should elect.

The report finds that, after this deed and bill of sale, William J. Allen, as legatee, had no further right to hold the executor, save in respect of the trust fund of $10,000, and that the defendants are not answerable for the portion of the general legacy conveyed to the executor, nor for any failure of the latter to administer or pay over the trust created by the instruments of June 5, 1886. It is contended by the plaintiff that this finding is wrong, and that the liability of the executor in respect of that portion of his brother's legacy not put in trust by the will continued, notwithstanding the transaction of June 5, 1886, and that the present defendants, as sureties, should now make good any deficiency therein, as well as in the $10,000 fund. But upon the report the transaction of June 5, 1886, appears to have been voluntarily and understandingly made, for the purpose of protecting the legatee from being defrauded by third persons. The words of the deed and bill of sale are apt to transfer the title of William J. Allen to his brother, and to substitute an obligation to deal with the property under the voluntary trust for that of accounting for it as executor, and we see no reason for disturbing the finding of the report in this respect. Having, many years before the executor's death, made this arrangement, which was in effect a settlement, adjustment, and liquidation of all his demands against the estate, and against the executor as executor, except the $10,000 trust fund, and having acquiesced in the arrangement until after the death of the executor, equity does not permit him now to hold the sureties responsible as though the arrangement had not been made. They are not responsible for the disposition of property which Herbert F. Allen thereafter held in another capacity than that of executor. See McKim v. Harwood, 129 Mass. 75.

The report finds that Herbert F. Allen had the use and benefit of the estate, and should stand charged with interest at the rate of 6 per cent. per annum upon the $10,000 of the trust fund, from February 11, 1884, to the date of the finding, and that execution should issue for the...