Greenwood v. McGilvray

• Decision Date: 08 September 1876
• Citation: 120 Mass. 516
• Parties: Charles Greenwood v. Elouise McGilvray, administratrix
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

120 Mass. 516

Charles Greenwood v. Elouise McGilvray, administratrix

Supreme Court of Massachusetts

September 8, 1876

Argued May 6, 1876.

Suffolk. Contract against the administratrix of David F McGilvray. Writ dated October 28, 1872. Trial in this court before Gray, C. J., who reported the case to the full court, in substance as follows:

The defendant having obtained leave from the Probate Court to adjust this suit by arbitration, upon agreement of the parties it was referred by rule of court, October 21, 1874, and the referee returned his award in favor of the plaintiff on January 15, 1876.

On February 10, 1876, the defendant filed a supplemental answer, alleging that she had represented the estate insolvent, and commissioners had been appointed by the Probate Court, and moving for a continuance of the suit to await the proceedings in the Probate Court. The plaintiff moved for judgment upon the award.

At the hearing upon these motions, the following facts were admitted: On September 25, 1871, the defendant was appointed administratrix, and gave bond for $ 25,000. At about the same time, it was intimated to her by a third party that the plaintiff intended to make a claim against the estate, and on March 17, 1872, he himself informed her verbally that he had such a claim, and in August, 1872, she received written notice from the plaintiff of his demand, in which were stated the several claims involved in this suit, amounting in all to $ 17,852.88. On September 27, 1873, the defendant made and obtained leave to file in the Probate Court an affidavit that she gave notice of her appointment within three months from September 25, 1871. On February 7, 1876, she filed in the Probate Court the statement of debts and representation of insolvency, and commissioners were appointed to receive and examine the claims of creditors. The first and only appraisal of the estate was made February 8, 1876, by appraisers appointed February 7, 1876, and the defendant's only inventory was filed February 9, 1876, and which included nothing besides property and the proceeds and income from property within the defendant's control and knowledge at the commencement of her administration of the estate.

Copies of the statement of debts, representation of insolvency, and the appraisement of the estate were annexed to the report. The statement of debts showed debts due persons other than the plaintiff amounting to $ 18,600, and stated that the "administratrix, believing no other debts to exist and that the said estate was solvent, paid, within a year or thereabouts after the decease of said McGilvray, all the above mentioned debts." The statement then set forth the award in the present case, that the damages and costs therein amounted to over twelve thousand dollars; that the estate not having sufficient cash assets to pay the first above mentioned debts, the administratrix, from time to time, advanced to said estate money of her own to pay said debts, and had reimbursed herself, from time to time, as she collected the assets of the estate; that the award, together with the first named debts, with the expenses and charges of administration, amounted to more than the whole assets of the estate in her hands as administratrix; and that the estate was insolvent, if the award was sustained.

The representation of insolvency set forth debts claimed to be due from the estate to the amount of $ 30,600, funeral expenses, $ 150, and charges of administration, $ 4000, making in all $ 34,750; and the assets: real estate, $ 10,000, and personal, $ 19,000, making in all $ 29,000; that the estate was probably insolvent, and praying for the appointment of commissioners.

The appraisement stated the real estate to be valued at $ 6000, and the personal at $ 18,460.

It was ruled that the plaintiff was entitled to judgment on the award, but not to execution thereon, and the case was reserved, at the plaintiff's request, for the consideration of the full court, such judgment or order to be made as law and justice may require.

Execution for costs to issue.

T. H. Sweetser & W. H. Drury, for the plaintiff.

T. H. Russell & C. T. Russell, Jr., for the defendant, were not called upon.

Endicott, J. Devens & Lord, JJ., absent.

OPINION

Endicott, J.

The statutes of this Commonwealth provide that the distribution of the estate of a deceased person, when insolvent, shall be made in the Probate Court. Gen. Sts. c. 99. When, on the representation of an executor or administrator, it appears that the estate in his hands is probably insufficient for the payment of the debts of the deceased, the judge of probate may appoint commissioners to receive and examine all claims, and return a list of those laid before them, and the sums they have allowed. The St. of 1873, c. 252, empowering the judge of probate to receive, examine and allow such claims, instead of appointing commissioners, has no application to this case, as commissioners were appointed.

Before appointing commissioners, the judge of probate is not called upon to pass upon the validity of the claims presented; he is only to ascertain whether, upon the representation made "it appears that the estate of the deceased will probably be insufficient for the payment of his debts." Such appointment does not settle or determine whether the claims are just claims, or that the estate is in fact insolvent. The commissioners thus appointed are sworn officers, to whom the duty is delegated of determining what claims shall be allowed as debts; and as they decide upon the claims laid before them, and make return thereof, the question of insolvency is decided. Any person whose claim is disallowed in whole or in part, or any executor or administrator, dissatisfied with the...