Foster v. Foster

• Citation: 134 Mass. 120
• Parties: Abby C. Foster v. Joseph E. Foster
• Decision Date: 09 January 1883
• Court: United States State Supreme Judicial Court of Massachusetts

134 Mass. 120

Abby C. Foster v. Joseph E. Foster

Supreme Court of Massachusetts

January 9, 1883

Argued November 10, 1882

Essex.

Bill dismissed, with costs.

C. A Benjamin, for the plaintiff.

H. P Moulton, for the defendant.

Devens J. C. Allen, Colburn & Holmes, J J., absent.

OPINION

Devens J.

The plaintiff, the defendant and their brother, Larkyn J. Foster, were the sole heirs and next of kin of Benjamin Foster. The plaintiff and the defendant jointly administered upon their father's estate, which has now ostensibly been settled by the Probate Court, the inventory and accounts having been rendered and the assets divided. The plaintiff alleges in this bill in equity, that the defendant has failed to inventory and account for two bonds, of the value of $ 500 each, which were of the estate of Benjamin Foster and came to his possession, and to one third of which, or the value of which, she is entitled. She avers that she assented to the final account of the estate, and receipted for her interest, upon the agreement that she should not thereby prejudice her right to her share of these bonds or of their value; that she is entitled thereto, and has not received either, although her brother Larkyn J. has been paid by the defendant one third of their value. The prayer of the bill is, that the defendant shall be ordered to account for these bonds as a part of the estate of said Benjamin Foster, so that she may be able "to receive her share thereof as an heir as aforesaid;" and also, but as an alternative prayer, that the defendant be ordered to pay the plaintiff the sum found due as her share of the bonds aforesaid. She contends that the defendant holds this property in trust for her, and that he is bound here to account for it. The bill does not aver that he ever agreed so to hold it, although it avers that he assured her that her signature to the final account and her receipt should not prevent her from making this claim, and that she should not be concluded by such assent. The bill also avers that the defendant denies having had the bonds in question, and on his part asserts that she is not entitled to anything more than she has already received as her share of the estate of her deceased father. To this bill the defendant has filed a demurrer.

As framed, the bill seeks to transfer to this court the settlement of the account of the defendant from the Probate Court, which has ample jurisdiction to redress the matters of which the plaintiff complains. If it was the duty of the defendant to have accounted for these bonds as a part of the estate of the intestate, he could have been cited before that court and ordered so to do. Gen. Sts. c. 96, § 6. If the plaintiff was dissatisfied with the decision there she could have appealed to this court. The receipt given by the plaintiff was certainly not conclusive against her, under the circumstances alleged as the inducement to her signing it. Even where an administrator produces receipts from all the heirs, acknowledging that he has paid them their distributive shares in full, such receipts may be explained or controlled by other evidence. Bard v. Wood, 3 Met. 74. The executor is bound by his general duty, not only to make oath to the truth and correctness of his account, but to answer specifically as to all facts within his knowledge, whether affecting his own rights or claims, or those of others. Gen. Sts. c. 98,...