Judge of Probate v. Mackintosh

• Citation: 165 N.E. 881,267 Mass. 86
• Parties: JUDGE OF PROBATE v. MACKINTOSH.
• Decision Date: 12 April 1929
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

267 Mass. 86

165 N.E. 881

JUDGE OF PROBATE

v.MACKINTOSH.

Supreme Judicial Court of Massachusetts, Norfolk.

April 12, 1929.

Exceptions from Superior Court, Norfolk County; C. H. Donahue, Judge.

Action by the Judge of Probate against Herbert B. Mackintosh. Judgment for plaintiff, and both parties bring exceptions. Exceptions overruled.

Ellis & Balch, J. H. Baldwin, and J. B. O'Hare, all of Boston, for plaintiff.

H. B. Mackintosh, of Needham, pro se.

PIERCE, J.

This is an action against the defendant, as pricipal on a trustee's probate bond, brought under the provisions of G. L. c. 205, §§ 23, 29, by a beneficiary upon the authorization of the judge of probate for the county of Norfolk. The case comes before us on two bills of exceptions, one by the plaintiff, the other by the defendant.

The trial judge found that ‘the plaintiff is entitled to recover in this suit the damage sustained by Eben Z. Parker [the beneficiary] through the maladministration of the defendant, in not terminating the trust,’ and found ‘that damage * * * to be onetwelfth of the sum of $4,450, the total loss resulting from the maladministration of the defendant, namely, $370.83,’ and he directed ‘that execution issue for that sum with interest and costs, for the use of Eben Z. Parker.’

The decree of the judge of probate upon the petition of Eben Z. Parker ‘to bring an action in the superior court upon the bond of [Herbert B. Mackintosh] trustee in the name of the judge of the probate court’ reads: ‘It is decreed that the petitioner be and he is hereby authorized to bring an action in the superior court on the bond of the said Herbert B. Mackintosh in the name of the judge of the probate court, for the recovery of any and all damages sustained by the maladministration of said Herbert B Mackintosh.’ G. L. c. 205, § 29, reads: ‘A bond given by a * * * trustee may be put in suit by order of the probate court for the benefit of any person interested in the estate, and the proceedings in such action shall be conducted in like manner as is provided relative to actions on bonds given by executors or administrators.’ Section 30 provides for the venue of actions on bonds of trustees. Section 31, so far as applicable to the petition and decree in this cade, provides: ‘If the court finds that there has been a breach of the condition of the bond, * * * it shall, upon a hearing in equity, award execution in the name of the plaintiff as follows: * * * Third. If the action is brought for a breach of the condition in not accounting for the estate as required by law, execution shall be awarded, without expressing that it is for the use of any person, for the full value of all the estate of the deceased which has come to the hands of the executor or administrator [trustee] and for which he does not satisfactorily account, and for all damages caused by his neglect or maladministration. Fourth. If the action is brought for any other breach of the condition of the bond, execution shall be awarded for such amount and for the use of such person or persons, or without expressing it to be for the use of any particular person, as the court determines.’

In Conant v. Stratton, 107 Mass. 474, 484, the court said that the provisions of Gen. St. c. 101, § 28, cl. fourth (now in part in G. L. c. 205, § 31, cl. third), import that the execution to be issued under that section shall be for the entire amount of all the estate remaining in the executor's hands, and are ‘intended for the case of the removal of an unfaithful executor [trustee] from his trust, and the substitution of another in his stead’-citing Bennett v. Russell, 2 Allen, 537;Choate v. Arrington, 116 Mass. 552.

G. L. c. 205, § 23, provides for an action by a person aggrieved by the maladministration of an executor (trustee). It was said in Chapin v. Waters, 110 Mass. 195, 199 (referring to Gen. Sts. c. 101, § 22, now G. L. c. 205, § 23), that the provisions of the section were ‘intended to meet the case of a wrong done, by the executor's [trustee's] maladministration, to any individual interested in the estate, and were not intended to be confined to the case of a general wrong to all persons interested, or to any particular class of persons whose rights have been disregarded. The suit is to be brought upon the representation of any person interested. It may be brought for the general benefit of all parties interested.’ G. L. c. 205, § 34, provides that if, after judgment rendered, there should be a new breach of the conditions, ‘or if a creditor, next of kin, legatee or other person interested in the estate has a claim for further damages on account of any neglect or maladministration of the executor * * * [trustee], a writ of scire facias on the original judgment may be sued out in like manner as is provided for the commencement of the original action,’ and of this provision it is said in Chapin v. Waters, supra, ‘These provisions certainly furnish a strong implication that in the original suit such parties may have execution for special damages to their respective particular interests.’

The bond in suit is in the common form. The declaration alleged breaches of the bond in that the trustee has not managed and disposed of the estate held by him as trustee, and has not faithfully discharged his trust in relation thereto according to law and the will of the testator; that he has not filed a true account of the property in his hands at least once a year (this charge was waived at the trial); that he has neglected and refused to obey a decree of the probate court that he should file an account on or before December 7, 1921; and ‘that the said Herbert B. Mackintosh at the expiration of his trust upon the death of the last survivor named in said will [of Sarah B. Akerman, deceased] did not settle his account in said court and has not paid over or delivered the estate remaining in his hands or due from him on such settlement to the person or persons entitled thereto and said Herbert B. Mackintosh so grossly mismanaged said estate that the assets greatly depreciated in value whereby an action has accrued to the plaintiff to recover from the defendant the amount of said bond.’ In substance, the defendant's answer admits his appointment as trustee under the will of Sarah B. Akerman in March, 1902, denies ‘every other allegation,’ and asserts that all the ‘alleged breaches, if any, were by * * * acts, ratification, consent and concurrence as aforesaid, cured, waived, ratified, and confirmed, so that this plaintiff, and said beneficiaries are now estopped, barred by laches, waiver, acquiescence and ratification from recovery therefor.’ All the evidence material to the issues raised by either bill of exceptions is contained in the bills of exceptions.

The pertinent facts therein stated are as follows: March 5, 1902, the defendant was appointed trustee under the eighth clause of the will of Sarah B. Akerman, who died March 28, 1888, to succeed one Martin, resigned. He filed the trustee's bond in suit and an inventory which showed real estate worth $5,500 and personal property of the value of $1,616.33. The eighth clause of the will devised and bequeathed to the trustee nominated therein the real estate and ‘all the rest, residue and remainder’ of the estate in trust for the following uses and purposes: ‘To pay the net income thereof as it shall be received, in equal shares to my nephew, William A. Sanger of said Boston, to my niece Harriet H. Parker of said Sandwich, to my nephew, the said Frank P. Guigon, and to my nephew, Henry M. Hall of Brookline, in Norfolk county, and to the survivor of them so long as either of them shall live; and upon the decease of the last survivor of them, to terminate said trust and convey, pay, and make over absolutely, the principal of the trust estate held under this eighth clause, as follows, viz.: One-sixth part thereof to the heirs at law of said William A. Sanger; one-sixth part thereof to the heirs at law of said Harriet H. Parker; one-third part thereof to the heirs at law of said Frank P. Guigon; and one-third part thereof to the heirs at law of said ...