Lothrop v. Parke

• Decision Date: 20 May 1909
• Citation: 202 Mass. 104,88 N.E. 666
• Parties: LOTHROP, Probate Judge NORTH AVENUE SAVINGS BANK v. PARKE et al. NORTH AVENUE SAVINGS BANK v. PARKE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

202 Mass. 104

88 N.E. 666

LOTHROP, Probate Judge NORTH AVENUE SAVINGS BANK v. PARKE et al. NORTH AVENUE SAVINGS BANK v. PARKE.

Supreme Judicial Court of Massachusetts, Suffolk.

May 20, 1909

COUNSEL

Wm E. Hutchins and H. I. Cummings, for plaintiff.

Henry T. Richardson, for defendants.

OPINION

KNOWLTON C.J.

The first of these cases is a suit upon a probate bond to pay all debts and legacies of a testator, given by the principal defendant as residuary legatee with sureties, under the provisions of Rev. Laws, c. 149, § 2. The suit is brought for the benefit of the plaintiff in the second action, who recovered judgment against the executrix, upon a claim founded on the fraud of the testator, whereby, while standing in a fiduciary relation to the plaintiff, he induced the plaintiff to lend money on what it supposed to be good security, when in fact the security was of little value. An execution was issued upon the judgment and it was returned unsatisfied. If this liability of the estate was a debt within the meaning of the statute, there is no defense to the suit upon the bond.

It is rightly contended that, in the strict technical meaning of the word 'debt,' this claim was not a debt at the time of the death of the testator. But the superior court held that it was a valid claim against him which survived his death and was enforceable against his estate. See Warren v. Para Rubber Shoe Company, 166 Mass. 97, 44 N.E. 112; Parker v. Simpson, 180 Mass. 334, 62 N.E. 401; Leggate v. Moulton, 115 Mass. 552. For the purposes of the present case the judgment must be held to have established conclusively the validity of the claim against the estate of the testator. Conant v. Stratton, 107 Mass. 474.

The important question is what construction should be given to the word 'debts' in this statute. It is sometimes used in a very broad sense, such as to include all enforceable demands, and even moral obligations, although its ordinary meaning is narrower. Atlas Bank v. Nahant Bank 3 Metc. 582; Cook v. Bartholomew, 60 Conn 24-26, 22 A. 444, 13 L. R. A. 452; State v. Georgia Company, 112 N.C. 34-37, 17 S.E. 10, 19 L. R. A. 485; Scott v. Neeves, 77 Wis. 305-310, 45 N.W. 421; Baltimore v. Gill, 31 Md. 375-390. The purpose of this statute is, in proper cases, to substitute the bond of the residuary legatee for the assets of the estate as security to all persons who are entitled to be paid out of the assets. If a bond is given no inventory or account need be filed. The bond provides for the payment of legacies as well as debts. The nature and purpose of the obligation are well set forth in Jones v. Richardson, 5 Metc. 247. The legislative intent was to provide this mode of payment for all who are entitled to be paid from the estate. On giving a sufficient bond, the executor is not required to retain assets for the payment of any claims. The word 'debts' is equivalent to valid claims which are payable by the executor from the property of the deceased person. We are of opinion that the word as used in the this section, includes all enforceable claims, and this this judgment is covered by the bond. In this particular the sureties are bound equally with the principal on the bond. Wood v. Barstow, 10 Pick. 368; McKim v. Haley, 173 Mass. 112, 53 N.E. 152.

The second suit is by a writ of scire facias, brought under Rev. Laws, c. 172,§ 8, because of a recovery of judgment against the executrix and a return of the execution unsatisfied. These facts, upon a suggestion by the judgment creditor that there has been waste, impose upon the executrix a personal liability for the amount of the judgment, unless she shows cause to the contrary by proving that the suggestion of waste is incorrect. In the present case the defendant has filed an inventory and an account, by which it appears that she has paid debts of the testator to an amount considerably larger than the amount of his assets. The judge ruled that the defendant might show that in fact there was no waste, and found that she had established the fact by her evidence.

We are of opinion that the ruling was correct. While it is said in many cases that the giving of a bond to pay all debts and legacies is a conclusive admission of assets sufficient to pay the debts (see Jones v. Richardson, 5 Metc. 247; National Bank of Troy v. Stanton, 116 Mass. 435; Thayer v. Winchester, 133 Mass. 447), this means conclusive as against a defense of no assets, set up...