Hanscom v. Marston
| Decision Date | 28 January 1890 |
| Parties | HANSCOM v. MARSTON. |
| Court | Maine Supreme Court |
(Official.)
Appeal from supreme judicial court, Cumberland county.
J. A. Waterman, for appellant. Frank & Larrabee, for appellee.
EMERY, J. One Crispus Graves, by will, appointed Marston, the appellee, its executor, and devised all the residue of his estate, after paying debts, etc., to school-district No. 5, in Falmouth, "for the purpose of educating the children of said district." Graves died, and his will was duly probated, and his appointment of Marston as executor was confirmed. Among the assets of the estate which came to the executor were $5,000 in United States bonds, agreed to be worth 6 per cent. premium; a note for $1,700 against one Blake, from which $1,000 was realized; and $900 Northern Pacific Railroad bonds. What these bonds were worth the record does not show. The United States bonds and the $1,000 from the Blake note were loaned by the executor to one Fickett, and his notes therefor taken, with what seemed to the executor a good indorser and good real-estate security, though the latter was only a second mortgage. The maker and indorser of these notes proved insolvent, and the supposed real-estate security proved to be worthless, from a failure of the title. The whole amount was lost to the estate. In making these changes of investment, the executor acted under the advice of an attorney at law of this state. In February, 1885, the executor settled in the probate court his first account, which, as settled, showed a balance due the estate of $5,450.33. No reference was made in that account to any change or loss in investments. After settling this account, and without any order of distribution, the executor, who was an in habitant$$$
of said school-district, procured a district meeting to be called, and a vote passed to accept the said notes and $400 in cash in full payment of the residuary legacy, and in full discharge of all liability of the executor to the district. Thereupon the executor paid the $400, and turned over the notes to the district agent, and took his receipt in full, according to the district vote; and supposed he had thus finally and fully administered the estate, and procured his discharge from further liability.
In June, 1886, however, an heir at law of Crispus Graves, the testator, petitioned the probate court to cite the executor to file and settle his final account. The executor resisted the petition, upon the ground that the petitioner had no interest in the estate; but it was finally determined in the supreme court of probate, (Rogers v. Marston, 80 Me. 404, 15 Atl. Rep. 22.) that the petitioner had such an interest in the estate as entitled him to require an account, and that the executor must proceed to file and settle a final account of his administration. Thereupon the executor filed an account charging himself with the balance of his first account only, ($5,450.33,) without premiums or interest, and crediting himself with $400 cash paid the district, and with $6,000, the par face value of the notes delivered to the district as above stated. The probate court below allowed the account as stated, showing nothing due the estate, and the heir at law appealed to the supreme court of probate. The facts were there agreed upon, and submitted to the law court for judgment.
The executor, upon the petition of an heir interested in the estate, had been ordered to file and settle a final account with the estate, in order that the amount of the balance available for distribution might be ascertained, preparatory to proper proceedings for a distribution among those lawfully entitled. Rogers v. Marston, supra. The account he has filed, while nominally with the estate, is really with school-district No. 5, in Falmouth, and ignores the interests of the petitioner and all other persons. It is not such an account as the court has ordered, or as the law requires.
In the probate court the whole estate as an entity is one party to any administration proceeding, whether carried on by executor, creditor, legatee, or heir. Every such proceeding is in favor of or against the estate. Every petitioner seeks something for or from the estate. The administrator or executor, as such, settles no accounts with persons,—no accounts with individual creditors, legatees or heir, nor with either class separately, but only with the estate as an entity. Creditors and legatees of specific legacies have claims against the estate, to be paid out of the whole estate according to their legal priority, without regard to any residuum. Such claims, in the case of solvent estates, are to be paid as fast as assets are realized, (after the statute time,) without waiting for full and complete administration. Payments made on these are official payments,—necessarily go into the executor's official account with the estate,—are properly debited to the estate, and credited to the administrator as fast as paid.
Heirs and residuary legatees, however, have no claim against the estate. Their time does not come till the claims have been so far paid, and the estate so far administered, that the court declares a balance to exist for distribution. They may hasten that time by following up the tardy executor with citations, as in this case, but until it comes they are not entitled to any payments to them selves. If such payments to an heir or residuary legatee are made by the executor with out an order of distribution, they are purely personal and unofficial, and have no proper place in the executor's official accounts with the estate. In the case at bar the payment of the cash and the delivery of other assets to the school-district were personal matters between the appellee and the district, which should not have been allowed in this official account. Paine v. Moffit, 11 Pick. 496; Cow din v. Perry, 11 Pick. 511; Granger v. Bassett. 98 Mass. 462, 469.
It should not be inferred, however, from the above suggestions, that we think the question to be one simply of practice and procedure in the probate court. Something more is involved. For the probate court to allow, in a final account or upon a decree of distribution, the payment of the $400 and the delivery of the notes to the district as lawful, and...
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...483, 43 Atl. 101. Sitting as the Supreme Court of Probate, this court will not exercise equity power in construing a will (Hanscom v. Marston, 82 Me. 288, 19 Atl. 460), and the converse is equally true. Whatever rights and remedies an interested party has must be sought and enforced in the ......
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