Habbard v. Aetna Cas. & Sur. Co.

• Decision Date: 08 November 1938
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: HABBARD v. AETNA CASUALTY & SURETY CO.

301 Mass. 442

16 N.E.2d 241

HABBARD

v.AETNA CASUALTY & SURETY CO.

Supreme Judicial Court of Massachusetts, Berkshire.

Nov. 8, 1938.

Proceeding in the matter of the estate of William L. Adam, an absentee, wherein Charles L. Hibbard was appointed receiver and executor. From a decree for distribution, the AEtna Casualty & Surety Company appeals.

Affirmed.Appeal from Probate Court, Berkshire County; A. M. Robinson, Judge.

C. S. Lyon and E. P. Brooks, both of Holyoke, for AEtna Casualty & suretY co.

Charles L. Hibbard, of Pittsfield, receiver, pro se.

QUA, Justice.

This is an appeal by the Aetna Casualty and Surety Company from a decree for distribution, entered February 28, 1938, whereby Charles L. Hibbard, receiver of the property of William L. Adam, an absentee, was ordered to distribute the assets in his hands as such receiver to himself as executor of the will of said Adam. G.L.(Ter.Ed.) c. 200, § 12.

The appellant, which is the surety on Hibbard's bond as receiver, may properly bring the case here, if its rights have been adversely affected by error in the decree. Murray v. Massachusetts Bonding & Ins. Co., 283 Mass. 15, 186 N.E. 377.

The principal contention upon which the appellant relies as showing that its interests have been prejudiced by error entering into the decree, although stated by it in different ways, may, we think, be fairly summarized as follows: That the decree ordering the receiver to distribute the assets of Adam in his hands to himself as executor of Adam's will does not protect the appellant unless Adam was in fact dead when the executor was appointed; that the appointment of an executor of the will of a live person would be a nullity; that the decree allowing the will and appointing the executor is not in itself conclusive of the fact of death, but that death is a jurisdictional fact or condition precedent to a valid appointment of an executor; that the appointment of Hibbard as executor of Adam was therefore open to collateral attack on Hibbard's petition as receiver for distribution to such an extent that at the hearing on that petition the death of Adam became an issue; and that there was error in dealing with the issue in that the findings of the material facts reported by the judge do not support his conclusion that ‘Adam came to his death by drowning in the Housatonic River on the night of April 9, 1933,’ and do not justify any conclusion that Adam was dead when Hibbard was appointed his executor. This contention has its origin in various decisions holding that the jurisdiction of the Probate Court to enter upon the administration of an estate is open to collateral attack in other proceedings on the ground that the supposed decedent was in fact alive. Jochumsen v. Suffolk Savings Bank, 3 Allen 87;Whitwell v. Bartlett, 211 Mass. 238, 98 N.E. 98;Gordon v. Shea, Mass., 14 N.E.2d 105;G.L.(Ter.Ed.) c. 192, § 3.

We think it unnecessary to determine whether or not the subsidiary findings justify the judge's conclusion as to Adam's death, as we are of the opinion that the appellant has not shown that it has been harmed even if there was error in the findings underlying the decree of distribution from which it has appealed. That decree was entered in the receivership proceeding which had been instituted and carried on under the authority of G.L.(Ter.Ed.) c. 200, relative to the settlement of the estates of absentees. The Probate Court had jurisdiction of that proceeding, whether the absentee was alive or dead. The receiver had been appointed by and was under the direction of that court, and the property of the absentee was in its custody. Sections 9, 10, 11. See c. 215, § 6. The decree ordering payment of the assets to Hibbard as executor was entered nearly five years after the disappearance of the absentee and after notice by publication and mailing as ordered by the court, and its terms were in accordance with c. 200, § 12. It was proper for the receiver to settle his account in the court which appointed him and for that court to close his administration of the estate of the absentee by directing the distribution of the balance in his hands. The decree for distribution was therefore an integral part of the proceeding which grew out of the necessity of protecting the property of the absentee and was within the jurisdiction of the Probate Court. See Nelson v. Blinn, 197 Mass. 279, 83 N.E. 889, 15 L.R.A.,N.S., 651, 125 Am.St.Rep. 364,14 Ann.Cas. 147, affirmed Blinn v. Nelson, 222 U.S. 1, 32 S.Ct. 1, 56 L.Ed. 65, Ann.Cas.1913B, 555;Adams v. Adams, 211 Mass. 198, 97 N.E. 982;Cunnius v. Reading School District, 198 U.S. 458, 25 S.Ct. 721, 49 L.Ed. 1125, 3 Ann.Cas. 1121, and compare Scott v. McNeal, 154 U.S. 34, 14 S.Ct. 1108, 38 L.Ed. 896. See, also, De Normandie v. Zwinge, 255 Mass. 214, 218, 151 N.E. 93;Farquhar v. New England Trust Co., 261 Mass. 209, 158 N.E. 836;Gay v. Carlstein, 262 Mass. 551, 554, 160 N.E. 343. If there was error (which we do not imply) in finding the facts upon which rested the recognition in that decree of Hibbard as the lawful executor and therefore the proper distributee, that error did not pertain to the jurisdiction of the court to enter the decree for distribution and did not, after the expiration of the time allowed for appeal, affect the force of that decree or lessen the protection which it affords to Hibbard in his capacity as receiver and to the appellant as his surety. White v. Weatherbee, 126 Mass. 450;Jones v. Jones, 223 Mass. 540, 542, 112 N.E. 224. See Lee v. Wood, 279 Mass. 293, 295, 181 N.E. 229. It makes no difference that the same person has been appointed both receiver and executor. The decree for distribution directs Hibbard as receiver to pay over the balance in his hands to himself to hold subject to whatever obligations were or may be imposed upon him as the result of his appointment as executor. If he now makes that payment, and if he has been guilty of no bad faith or lack of sound judgment or diligence in the performance of his fiduciary obligation as receiver in connection with the distribution (and there is no suggestion in the record of any such dereliction on his part), he and the appellant will have all the protection a decree of the court can give them. Loring v. Steineman, 1 Metc. 204;Pierce v. Prescott, 128 Mass. 140;Cleaveland v. Draper, 194 Mass. 118, 80 N.E. 227;Jones v. Jones, ...