Marvel v. Babbitt
| Decision Date | 06 January 1887 |
| Citation | 9 N.E. 566,143 Mass. 226 |
| Parties | MARVEL v. BABBITT and another, Trustee. (PAUL, Claimant.) |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
L.E. White, for claimant.
The claimant, as administrator de bonis non of the estate of Edward Babbitt, deceased, seeks, under Pub.St. c.183, § 35 to hold the funds in the hands of the supposed trustee. It became the duty of the claimant, in execution of his trust either by bringing suit directly against the supposed trustee, or by appearing as claimant in this case, to collect the fund in question, and a failure to do so would render him liable in an action on his bond. Pub.St. c. 133, § 2. He could collect what was due the first administrator in his own name. Sullivan v. Holker, 15 Mass. 374. The first administrator's possession was merely en autre droit until the debts were paid. As the funds remained in specie they passed to the administrator de bonis non. Weeks v. Gibbs, 9 Mass. 73; Dawes v. Boylston, 9 Mass. 353. Appearing as claimant in this suit is a proper remedy. Pub.St. c. 183, § 35; Randall v. Way, 111 Mass. 506; Mortland v. Little, 137 Mass. 339. See Coburn v. Ansart, 3 Mass. 319, and note distinction, (decided in 1807;) Long v. Long, 1 Danv.Abr. 206; Tarbell v. Jewett, 129 Mass. 457. See, also, Farr v. Newman, 4 Durn. & E. 621, and Gaskell v. Marshall, 1 Moody & R. 132; Stevens v. Goodell, 3 Metc. 38.
F.S. Hall, for plaintiff.
There were funds in the hands of the trustee subject to attachment. Coburn v. Ansart, 3 Mass. 319; Drake, Attachm. (6th Ed.) § 496; Kellogg v. Waite, 12 Allen, 529; Randall v. Way, 111 Mass. 506. The character of the indebtedness was that of a chose in action,--an immediate liability from the trustee to the defendant. See Maxwell v. McGee, 12 Cush. 137; Cook v. Holbrook, 6 Allen, 572. The administrator de bonis non does not succeed to the funds in question as a matter of right. They have been changed in specie. 2 Williams, Ex'r, (6th Amer.Ed.) 983, 986; Weeks v. Gibbs, 9 Mass. 74; Wiggin v. Swett, 6 Metc. 194; Toller, Ex'rs, 450, note. The position of the funds in question is regulated by the statute. Pub.St. c. 134, § 1. The remedy, if any, is upon the bond. Baylies v. Chace, 1 Pick. 230; Bennett v. Overing, 16 Gray, 268; Hannum v. Day, 105 Mass. 38. There is no trust fund here disclosed. If there is a trust, it must relate back to the realty. 2 Perry, Trusts, § 837. Finally, the trustee process is a broad and liberal act. It is a well-settled rule of construction that, where the exceptions in the statute are enumerated, the court will not enlarge or limit its meaning.
OPINION
This is an action against Edward H. Babbitt personally, in which the plaintiff seeks to hold by trustee process the proceeds of a sale of real estate by Babbitt as administrator, which are now in the hands of his counsel. Babbitt has been removed from the office of administrator, and the fund is claimed by the administrator de bonis non. The court below ordered the trustee discharged, and awarded the fund to the claimant. We are of opinion that this was the proper course. Courts of common law, as well as of equity, have long recognized that assets of an estate, including money, so long as the fund can be identified, in the hands of an executor or administrator, are held by him en autre droit, and quasi in trust. Pub.St. c. 156, § 32; Weeks v. Gibbs, 9 Mass. 74; Dawes v. Boylston, Id. 337, 352; Stevens v. Goodell, 3 Metc. 34; Howard v. Jemmet, 3 Burr. 1369, note; Farr v. Newman, 4 Term R. 621, 648; McLeod v. Drummond, 17
Ves. 152, 168; Wilson v. Moore, 1 Mylne & K. 126, 337; Kinderly v. Jervis, 22 Beav. 1-3. It follows that, when an administrator is removed, the administrator de bonis non is entitled to receive the assets in specie, (Stevens v. Goodell, ubi supra; Pub.St. c. 156, §§ 14, 15; Collins v. Collins, 140 Mass. 502, 505;) and the proceeds of real estate sold are to be considered as assets, (Pub.St. c. 134, § 1.)
In this case the fund is identified; for, even if Babbit's counsel had made himself a simple debtor to Babbitt, the administrator, by depositing the proceeds in his own private bank-account, according to the prevalent loose practice, (see Vail v. Durant, 7 Allen, 408,) still the proceeds were the consideration of the debt, and thus could be traced, and therefore, as between the administrator and the administrator de bonis non, belonged to the latter. It does not appear, however, that the alleged trustee had not kept the fund distinct.
The fallacy in the plaintiff's argument lies in the tacit assumption that an administrator becomes quasi a debtor to the estate for all moneys coming to his hands, and that therefore, the specific moneys or proceeds of a sale belong to him, whereas, in modern times, at least, his duty is to keep the funds distinct from his own; and, if he does so, he will not be absolutely and personally bound as a debtor, but will be discharged if the funds are lost without his fault. See Pub.St. c. 156, § 32. It is true that, where the person summoned as trustee was a debtor of the defendant at common law, the decisions have gone some length in charging him before the intervention of claimants was allowed, (Coburn v. Ansart, 3 Mass. 319,) and have held him discharged by payment, since that time, where the claimant had notice, and neglected to appear, (Randall v. Way, 111 Mass. 506.) See Mortland v....
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