Judge v. American Sur. Co. Of N.Y.. Davis

• Court: Maine Supreme Court
• Writing for the Court: FELLOWS, Justice.
• Citation: Judge v. American Sur. Co. Of N.Y.. Davis, 67 A.2d 421 (Me. 1949)
• Decision Date: 20 June 1949
• Parties: DAVIS, Judge, v. AMERICAN SURETY CO. OF NEW YORK. DAVIS, Judge, v. MAINE BONDING & CASUALTY CO.

67 A.2d 421

DAVIS, Judge,

v.AMERICAN SURETY CO. OF NEW YORK.

DAVIS, Judge,

v.MAINE BONDING & CASUALTY CO.

Supreme Judicial Court of Maine.

June 20, 1949.

Exceptions to Superior Court, Somerset County, at Law.

Actions of debt by George M. Davis, Judge of Probate, against the American Surety Company of New York, and against the Maine Bonding & Casualty Company, to recover on executor's bonds to permit sale of realty. In the action against the American Surety Company of New York, the referee found for the defendant, and in the action against the Maine Bonding & Casualty Company, the referee found for the plaintiff, and the plaintiff and the Maine Bonding & Casualty Company bring exceptions.

Exceptions overruled in the case against the American Surety Company, and exceptions sustained in the action against the Maine Bonding and Casualty Company.

Seth May, Auburn, Rupert F. Aldrich, Norway, Edmund S. Muskie, Waterville, for plaintiff.

Perkins, Weeks & Hutchins, Waterville, James R. Desmond and William B. Mahoney, both of Portland, for defendant Maine Bonding & Casualty Company.

Merrill & Merrill, Skowhegan, for defendant, American Surety Co.

Before STURGIS, C. J., and THAXTER, MURCHIE, and FELLOWS, JJ.

FELLOWS, Justice.

These two actions of debt from Somerset County, brought in the name of the Judge of Probate, on executor's bonds to permit sale of real estate, were heard together by a referee. In the action against American Surety Company the referee found for the defendant company. In the action against Maine Bonding & Casualty Company the referee found for the plaintiff in the sum of $7373.83. To the acceptance of the referee's report in the American Surety Company case the plaintiff filed written objections and took exceptions to allowance. To the acceptance of referee's report in the Maine Bonding & Casualty Company case the defendant objected in writing and excepted.

The American Surety Case

This was an action of debt on two bonds of Daniel M. Marshall, executor of the will of Columbus Marshall, each in the penal sum of $20,000.00 One bond for sale of real estate was dated April 16, 1926, and the other, as security for renewal of license to sell real estate, was dated May 7, 1927. The bonds were executed by the defendant American Surety Company of New York in connection with the executor's license to sell certain real estate of the deceased testator, under and according to Revised Statutes 1944, Chapter 150, Sections 3, 4 and 18. The original license to sell the real estate was granted to the executor on April 13, 1926 and the second license was granted May 4, 1927. There was no sale of the testator's real estate made until 1934, under another license dated September 12, 1934. When the sale was made the defendant American Surety Company did not issue the accompanying bond. The surety in 1934 was the other defendant.

The conditions of the bonds issued in 1926 and 1927 by this defendant, American Surety Company in this case, were as provided by Revised Statutes 1944, Chapter 150, Section 3, that, the executor would (1) ‘observe all provisions of law for the sale’ and ‘use due diligence in executing the trust’ and (2) that he would ‘truly apply and account for the proceeds of said sale.’

There was no sale made by the executor within a year, while either the 1926 or 1927 licenses to sell were in force. Revised Statutes 1944, Chapter 150, Section 18. The referee found no liability on the part of the American Surety Company because no breach of the bond. In other words, the referee found as facts that there was no sale and no lack of due diligence.

It does not appear by the record before us that this executor, at the time when he was appointed executor, gave a general bond for the faithful discharge of his trust as executor. He was probably excused under the will. Revised Statutes 1944, Chapter 141, Section 10 and Section 11. The fact that the executor did not give a general bond, does not authorize the extension of a special bond, for sale of certain real estate, to cover money or property received from sources other than sale of the real estate. Judge of Probate v. Toothaker, 83 Me. 195, 22 A. 119; Williams v. Morton, 38 Me. 47, 61 Am.Dec. 229.

No sale was made of property belonging to the testator's estate while the above-mentioned licenses of 1926 and 1927 were in force. The sale was made years afterward and under another license to sell. The failure to account for any money received by the executor as the proceeds of the 1934 sale is not a breach of either of the bonds issued in 1926 and 1927 by the defendant American Surety Company. The referee could find, and did find, that the executor was not at fault in not selling under these licenses issued in 1926 and 1927. Miller v. Meservey, 107 Me. 158, 77 A. 697.

The plaintiff has no valid exceptions to the acceptance of the referee's report in this case against the American Surety Company.

The Maine Bonding Case.

This second action of debt, on a $10,000. bond for executor's sale of real estate, was brought by Rupert F. Aldrich as administrator d.b.n.c.t.a. of Columbus Marshall, in the name of the Judge of Probate for the benefit of the estate, against the defendant Maine Bonding & Casualty Company. The bond of defendant was dated September 20, 1934. ‘The condition was such’ (as the declaration states) ‘that whereas said Daniel Mann Marshall, in the capacity of executor of the will of Columbus Marshall, late of Anson, in said County of Somerset, deceased, at a court of probate held at said Skowhegan on the 12th day of September A. D. 1934, was licensed to sell and convey certain of the real estate belonging to said Columbus Marshall, described in the petition of said Daniel Mann Marshall for license to sell, dated September 12, 1934, then if said Daniel Mann Marshall should first, well and truly observe all provisions of law for the sale, leasing or exchanging of such real estate, or interest therein, and use due diligence in executing said trust, and second, truly apply and account for the proceeds of sale or lease according to law, then said obligation was to be void, otherwise to remain in full force.’ The plaintiff further alleged that within the year covered by the license the executor did not observe the provisions of law for the sale of property, nor use due diligence, but ‘with intent to defraud the estate of Columbus Marshall, gave executor's deeds thereof dated November 28, 1934, to one Hemon S. Blackwell of Stratton, Franklin County, Maine, conveying to him the title and ownership of said lands in ostensible execution of his said license to sell the same, but with a secret agreement whereby said Blackwell was not to pay for said lands but was to cut and remove the wood and timber therefrom and deliver the same to said Daniel Mann Marshall, personally, or to parties designated by him in return for $100.00 a month to be paid said Blackwell by said executor,’ and the plaintiff further claimed that the ‘fraud and secret agreement were concealed by said executor, who on December 20, 1934 at Skowhegan aforesaid filed certificates of sale of said land to said Blackwell, in said court, purporting to show a bona fide sale thereof for $2,000.00, as to part thereof and for $1,000.00, as to the remainder thereof.’ Blackwell gave back a mortgage to the executor personally, who assigned the mortgage to a bank, which bank foreclosed. There were other and additional allegations of fraud, ‘neglect, inattention and indifference’ regarding the testator's property in Somerset County, covered by the license to sell.

The defendant pleaded the general issue and by brief statement pleaded performance. The plaintiff by counter brief statement denied...