Mansfield v. Holton

• Citation: 68 A. 541,74 N.H. 417
• Parties: MANSFIELD v. HOLTON.
• Decision Date: 26 December 1907
• Court: Supreme Court of New Hampshire

68 A. 541

74 N.H. 417

MANSFIELD

v. HOLTON.

Supreme Court of New Hampshire. Hillsborough.

Dec. 26, 1907.

Transferred from Superior Court, Hillsborough County; Peaslee, Judge.

Probate appeal by Edward C. Holton from a decree allowing the first account of plaintiff, Alfred L. Mansfield, as administrator de bonis non of the estate of Henry Holton, deceased, both in this state and in Massachusetts. Case discharged.

The personal property of the estate was insufficient to pay the debts, and the plaintiff agreed with the defendant, who is sole heir, to take charge of all the deceased's real es tate and apply the net income thereof to the payment of debts. No account was settled in Massachusetts, it being agreed that the whole matter should be adjusted in this proceeding. in so far as the real estate is concerned, the court ruled that the management of that located in Massachusetts could, and of that located in New Hampshire could not, be made a part of the administration by agreement. The plaintiff excepted to this ruling as to real estate in New Hampshire, and the defendant as to that in Massachusetts.

George B. French, for plaintiff. Sam K. Paige, of Massachusetts, for defendant.

TOUNG, J. Real estate vests in the heirs, charged with the payment of debts and administration expenses. Their interest in the property is not unlike that of a mortgagor (Gibson v. Farley, 16 Mass. 280); for they may provide the money needed to pay their ancestor's debts and the expenses of administration, and when that is done the court will refuse to license a sale of the land, even if the debts have not been paid (Fay v. Taylor, 2 Gray [Mass.] 154). It is therefore the duty of an administrator to accept money of the heirs for that purpose; and if he does accept it, he will he charged with it the same as if he had received it from a sale of the land. Griswold v. Chandler, 5 N. H. 492; Brown v. Fessenden, 81 Me. 522, 17 Atl. 709; Campbell v. McCormick, 1 Ohio Civ. Ct. R. 504, 508, 1 O. C. D. 281. The plaintiff managed the real estate under an agreement to apply the net income to the payment of debts; so if there was any such income while he had charge of the property, he has received money which it was his duty to apply as a part of the deceased's estate. Consequently, in this case he may be compelled as administrator to account for the net income of the real estate, although he could not be so compelled if he had managed the property for his own benefit, or for the benefit of the heirs. Perkins v. Perkins, 58 N. H. 405; Lucy v. Lucy, 55 N. H. 9. Since the plaintiff can only be compelled to account for what he agreed to apply to the payment of debts, it will be necessary to ascertain just what the agreement contemplated should be applied for that purpose. It provided that the plaintiff should "collect all rents and profits from houses and real estate to which I am entitled as heir of the estate of Henry Holton, and which are included in the Holton estate," and should "pay debts on the estate with the proceeds thus collected, also costs of repairing and keeping said real estate in rentable condition." If this language is given its ordinary meaning, he is to account for the net income of the property as a whole, not for the net income of Massachusetts or New Hampshire property as such. Consequently, if there was some net income from the property in Massachusetts, but none from the whole property, he has not received any money from the defendant to pay the debts of the deceased, and there is nothing for which he can be compelled to account, either to the defendant or to the deceased's creditors.

The only other question raised by the plaintiff's exception is whether, when the parties do not agree as to the amount of money the administrator has received from the heirs to pay the debts of the deceased, the probate court has jurisdiction of that issue; or, stated another way, whether the probate court of this state has jurisdiction of disputes growing out of, but not connected with, the settlement of an estate. It neither has such statutory (Pub. St. 1901, c. 182, § 2), nor such common-law jurisdiction (Hayes v. Hayes, 48 N. H. 219, 229), nor do the cases on which the plaintiff relies sustain his contention that it has. Those outside of Massachusetts simply hold that, if the administrator occupies the real estate under an agreement to use the income to pay the debts of the deceased, he should be charged with the income as administrator. Brown v. Fessenden, 81 Me. 522, 17 Atl. 709; Campbell v. McCormick, 1 Ohio Civ. Ct. R. 504, 508, 1 O. C. D. 281; Stiver v. Stiver's Heirs, 8 Ohio, 217. To the same effect is Griswold v. Chandler, 5 N. H. 492. Although the Massachusetts cases hold that if there is a dispute as to the amount of income the administrator has received the probate court has jurisdiction to decide it, they were all decided under a statute which confers such jurisdiction on the court in express terms. Gibson v. Farley, 16 Mass. 280; Stearns v. Stearns, 1 Pick. (Mass.) 157; Wilson v. Shearer, 9 Metc. (Mass.) 504; Newcomb v. Stebbins, 9 Mete. (Mass.) 540; Palmer v. Palmer, 13 Gray (Mass.) 326; Almy v. Crapo, 100 Mass. 218; Towle v. Swasey, 106 Mass. 100; Brooks v. Jackson, 125 Mass. 307; Choate v. Jacobs, 136 Mass. 297; Brigham v. Elwell, 145 Mass. 520, 14 N. B. 780.

It can serve no useful purpose to consider the effect of the defendant's exception; for whether he is right or wrong, the plaintiff cannot be charged in this proceeding with the income of the Massachusetts property. Assuming that the court could ascertain the net income from that property, it could not charge the plaintiff with it as assets in his hands for distribution, for the statute which confers jurisdiction provides in substance that when there is an agreement between the heirs and the administrator the income shall be applied in accordance with it. Brigham v. Elwell, 145 Mass. 520, 14 N. E. 780; Stearns v. Stearns, 1 Pick. (Mass.) 157; Gibson v. Farley, 16 Mass. 280. Therefore, if this decree is considered as a final adjudication of the controversy in so far as the Massachusetts property is concerned, all that it establishes is that the administrator has so much money in his hands to offset any loss he may have sustained on the New Hampshire property. Since the plaintiff is only chargeable with the net income of the property as a whole, he cannot be charged with anything until it has been ascertained whether there was any such net income; but when that has been done, if there is any such income, he must account for it.

Case discharged. All concurred.

On Rehearing.

BINGHAM, J. The plaintiff takes the position in his motion for rehearing that the case finds that the estate was actually insolvent, and...