Graffam v. Ray
| Decision Date | 08 January 1898 |
| Parties | GRAFFAM v. RAY. |
| Court | Maine Supreme Court |
(Official.)
Exceptions from supreme judicial court, Cumberland county.
Action by Daniel S. Graffam against Fabius M. Ray. From a rule of judgment sustaining a demurrer to the declaration, plaintiff excepts. Overruled.
S. L. Bates, for plaintiff.
J. H. & J. H. Drummond, Jr., for defendant.
STROUT, J. Plaintiff is residuary legatee under the will of Elias S. Dodge. Defendant was executor of that will. He has filed his final account in probate court, and resigned his trust Plaintiff claims that he was guilty of a devastavit while in office as executor, in that he failed to collect certain choses in action existing in favor of Dodge, and permitted them to become barred by the statute of limitations. He seeks to recover the amount of these rights and credits in this action at common law to his own use. The case comes here upon exceptions to a ruling of the court below sustaining a general demurrer to the declaration.
Assuming the defendant to be in default, as we must do on the question as now presented (though the fact is denied in argument), can this action be maintained? We think not.
The probate court has exclusive jurisdiction, subject to appeal to the supreme court of probate, of the estates of decedents, and their final settlement and distribution, including the settlement of the accounts of the personal representative. If a devastavit exists, it is the duty of that court to compel the executor to account for the amount lost to the estate by his fault. The executor is bound to act in good faith, and with reasonable diligence, in husbanding all the assets of the estate. But he is not required, nor would he be justified, in rushing into injudicious suits, where recovery is doubtful, or its expense in excess of the amount to be realized. If a devastavit is alleged, a hearing upon that question should be had in the probate court, on settlement of the executor's account. On such hearing, he would not necessarily be charged with the full amount of the uncollected claims. They might be doubtful, or subject to set-off, or denied by the assumed debtor. In such case, the uncertainty of recovery, or the expense of suit, might be so disproportionate to the amount of the claim that it would be unwise to institute suit and subject the estate to the expense; or the executor might not have funds of the estate sufficient to carry on the litigation. All these questions would be determined by the probate court, and the executor charged for such amount as in equity and under the rules of law he was liable for. All these matters are within the exclusive jurisdiction of the probate court, and cannot be passed upon by a common-law tribunal. The probate court is invested with ample power in these respects.
Notwithstanding the resignation of the executor, he can still be cited into the probate court, and required to account for the matters claimed, if liable therefor. Robinson v. Ring, 72 Me. 143. It can only be done in that court. Potter v. Cummings, 18 Me. 58; Judge v. Quimby, 89 Me. 576, 36 Atl. 1049.
There is no allegation in the writ that the debts and general legacies have been paid, nor that the amounts now claimed will not be needed for that purpose, nor that the estate is solvent. For aught that is disclosed by the writ, there may be nothing for the residuary legatee, in any event. There is no allegation that the present claim of plaintiff to charge the executor with these uncollected sums was not made, heard, and disallowed by the probate court on settlement of the executor's account.
If it wore, and that court rejected the charge, its decree to that effect, unappealed from, is final, and cannot be impeached or inquired into here, as the matter was entirely within its jurisdiction. Gilbert v. Duncan, 65 Me. 477; Sturtevant v. Tallman, 27 Me. 78; Pierce v. Irish, 31 Me. 254; Simpson v. Norton, 45 Me. 281; Decker v. Decker, 74 Me. 467; Harlow v. Harlow, 65 Me. 448.
If the defendant is guilty of a devastavit, as plaintiff claims, the liability is to the estate of Dodge, and not to this plaintiff personally. The funds may be needed to pay debts or general legacies, or administration expenses. The plaintiff is entitled only to so much of the...
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Thompson v. Nichols
... ... only supplementary or auxiliary jurisdiction in certain ... matters of administration involving special equitable ... features, which would constitute sufficient ground for ... equitable jurisdiction, as in Hawes v. Williams, 92 ... Me. 492, 43 A. 101, citing Graffam v. Ray, 91 Me ... 234, 39 A. 569, in which case, in speaking for the court, Mr ... Justice Strout said: ... 'The ... probate court has exclusive jurisdiction, subject to appeal ... to the supreme court of probate, of the estates of ... decedents, and their final settlement and ... ...
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...v. Ueland, supra; O'Brien v. Larson, supra; Boltz v. Schutz, supra; Betcher v. Betcher, supra; Appleby v. Watkins, supra; Graffam v. Ray, 91 Me. 234, 39 Atl. 569; Steel v. Holladay, On the other hand, there is a primary difference between the jurisdiction, the positive powers, and the machi......
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...v. Ueland, supra; O'Brien v. Larson, supra; Boltz v. Schutz, supra; Betcher v. Betcher, supra; Appleby v. Watkins, supra; Graffam v. Ray, 91 Me. 234, 39 A. 569; Steel Holladay, supra. On the other hand, there is a primary difference between the jurisdiction, the positive powers, and the mac......