Long v. Copeland
| Decision Date | 26 November 1902 |
| Citation | 65 N.E. 384,182 Mass. 332 |
| Parties | LONG, Judge, v. COPELAND et al. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
OPINION TEXT STARTS HERE
Appeal from superior court, Hampden county.
Action on a guardian's bond brought by Charles L. Long, judge of probate, against Alfred M. Copeland, principal, and others, as sureties. Judgment for defendants on a demurrer to the declaration, and plaintiff appeals. Affirmed.
Wendell G. Brownson, for appellant.
A. M. Copeland and D. E. Webster, for appellees.
It is too late to question the rule laid down in Conant v. Kendall, 21 Pick. 36, that a creditor of the ward can maintain an action on the bond given by a guardian. But in that case this court left open the question whether the crditor could maintain such an action before he had reduced his debt to judgment (21 Pick. at page 40); and this question was referred to as still an open one in Cole v. Eaton, 8 Cush. 587, 588. No reference has been made to it in any of the subsequent cases in which this matter has been before the court. Hicks v. Chapman, 10 Allen, 463;Willard v. Lavender, 147 Mass. 15, 17, 16 N. E. 582. We are of opinion that the question must be answered in the negative, and that no action can be maintained by a creditor of the ward on the bond given by the guardian until his claim has been reduced to judgment. By Rev. Laws, c. 149, § 29, it is provided that bonds given by guardians or trustees may be put in suit by order of the probate court, ‘and the proceedings in such actions shall be conducted in like manner as is provided relative to actions on bonds given by executors or administrators.’ By Rev. Laws, c. 149, § 20, no suit can be brought by a creditor on an executor's or administrator's bond until the debt has been reduced to judgment, and the excutor or administrator has neglected, upon demand made by the creditor, to pay the same, or to show sufficient goods or estate of the deceased to be taken on execution. The provisions of these two sections originated in St. 1786, c. 55, § 2. Section 1 of that act regulates the entering up of judgment and issuing execution in actions on bonds of administrators. Section 2 provides that the debt must be reduced to judgment before action on the bond can be brought, and the administrator must have neglected to pay the debt, ‘or to show goods or estate of the deceased for that purpose.’ The section ends with these words: ‘The like judgment and proceedings (so far as they can with propriety take place) are to be had upon bonds of executors, guardians, and others, given to the judges of the probate courts in their said capacity.’ The provisions of this section were put in their present form by the commissioners to revise the statutes, who reported in 1835, for the section as to proceedings on guardian's bonds being conducted in like manner as is provided relative to actions on bonds of executors and administrators (see Commissioners' Report, c. 79, § 25), and for the section requiring the debt to be reduced to judgment in case of actions on bonds of executors and administrators (see Commissioners' Report, c. 70, § 3). There is no intimation in the notes of the commissioners...
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- Weatherbee v. New York Life Ins. Co.
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Quincy Mut. Fire Ins. Co. v. Western Sur. Co., 93-P-1276
...for improper conduct of a conservator. G.L. c. 205, § 29. 2 See 2 Newhall, Settlement of Estates § 262 (1958); Long v. Copeland, 182 Mass. 332, 333-334, 65 N.E. 384 (1902). There are two routes to an action on a fiduciary bond. Section 7A of G.L. c. 205 permits a direct action by a petition......