Judge of Probate v. Bowker

• Decision Date: 04 March 1930
• Citation: 170 N.E. 451,270 Mass. 497
• Parties: JUDGE OF PROBATE v. BOWKER.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

270 Mass. 497

170 N.E. 451

JUDGE OF PROBATE

v.BOWKER.

Supreme Judicial Court of Massachusetts, Middlesex.

March 4, 1930.

Exceptions from Superior Court, Middlesex County; Fosdick, Judge.

Action by the Judge of Probate, on the petition of William H. Dunbar and another, trustees under the will of Edwin Bowker, deceased, agianst Francis E. Bowker, executor of the will of Francis E. Bowker, Sr., deceased. On plaintiff's exceptions to the Superior Court's rulings sustaining defendant's plea in abatement and admitting and excluding evidence. Exceptions sustained.R. G. Boyd, of Boston, for plaintiff.

H. R. Bygrave, of Boston, for defendant.

CARROLL, J.

This action of contract is on the probate bond of Francis E. Bowker, Sr., as trustee under the will of Edwin Bowker. The date of the writ is February 20, [270 Mass. 498]1929. The defendant is the executor of the will of Francis E. Bowker, Sr., the principal of the bond. The action is brought in the name of the Judge of Probate pursuant to the petition of the present trustees under the will of Edwin Bowker.

The plaintiff's bill of particulars sets out that the defendant was appointed executor of the will of Francis E. Bowker, Sr., on March 20, 1924, and gave bond as such; that all of the accounts of Francis E. Bowker, Sr., as trustee under the will of Edwin Bowker have not been settled in the Probate Court; that the present trustees were appointed March 9, 1928. The defendant filed a plea in abatement alleging that the defendant was appointed executor of the will of Francis E. Bowker, Sr., on March 20, 1924, and gave bond, and also gave due notice of his appointment; that it appeared from the plaintiff's declaration and bill of particulars that this action was brought more than one year from the time of the defendant's giving bond; and that the defendant should not be held to answer in this action. In the Superior Court the defendant's plea was sustained; to this ruling the plaintiff excepted.

At the hearing on the plea in abatement the defendant offered in evidence copy of ‘an affidavit [of notice] hereto annexed and made part hereof.’ The plaintiff objected to this evidence on the ground that the affidavit, not having been filed until more than eleven months after the defendant was appointed, was not admissible in evidence under G. L. c. 195, §§ 1 and 2. This evidence was admitted subject to the plaintiff's exception. The plaintiff offered in evidence a copy of the decree appointing the defendant trustee as successor to Francis E. Bowker, Sr., a copy of the resignation of the defendant as trustee accepted by the Probate Court on March 9, 1928, and a certificate of the Probate Court showing its decree appointing the present trustees under the will of said Edwin Bowker. All of this evidence was excluded and the plaintiff excepted. The plaintiff offered to prove that the excluded documents would show that though the present action was brought more than one year subsequent to the approval of the defendant's bond, the action was seasonably brought since from March 20, 1924, when the defendant's bond as executor was approved, to April 1, 1924, when the defendant was appointed trustee, there was no trustee under the will of Edwin Bowker; and that from April 1, 1924, to March 9, 1928, when the defendant's resignation as trustee was accepted, the trustee under said will was the defendant-‘the same individual as was throughout said period executor of the will of Francis E. Bowker, Sr.’

The defendant contends that as he was appointed executor of the will of Francis E. Bowker, Sr. (who had been trustee under the will of Edwin Bowker) on March 20, 1924, gave bond on that date, and gave due notice of his appointment as executor, the plaintiff is barred by the short statute of limitations, this action not having been brought within one year from the time the bond was given, G. L. c. 197, § 9. The plaintiff's contention on this point is that the short statute of limitations is not a bar for the reason that the defendant was appointed executor of the will of Francis E. Bowker, Sr., on March 20, 1924; that the evidence excluded showing the appointment of the defendant as trustee under the will of Edwin Bowker as successor to Francis E. Bowker, Sr., on April 1, 1924, was admissible, as it would show that the defendant was at the same time trustee under the will of Edwin Bowker and the executor of the former trustee, Francis E. Bowker, and as he held both offices the short statute of limitations was not a bar; that as the same individual is the trustee of the estate having the claim and the executor of the estate against whom the demand is made, the judge should have admitted the evidence and overruled the plea.

If from April 1, 1924 to March 9, 1928 the defendant was trustee of the estate making the claim, as the plaintiff offered to show, and as the defendant was appointed executor of Francis E. Bowker, Sr., on March 20, 1924 until March 9, 1928, the...