McIntire v. Mower

• Citation: 204 Mass. 233,90 N.E. 567
• Parties: McINTIRE, Judge, v. MOWER et al.
• Decision Date: 07 January 1910
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

204 Mass. 233

90 N.E. 567

McINTIRE, Judge,

v.MOWER et al.

Supreme Judicial Court of Massachusetts, Middlesex.

Jan. 7, 1910.

Appeal from Superior Court, Middlesex County; William E. Dana, Judge.

Action by direction of the judge of the probate court of Middlesex county, on the application of George F. Williams, as administrator de bonis non with the will annexed of John Howorth, against George H. Mower, as executor of the will of said Howorth, and another. From the judgment, plaintiff and defendant United States Fidelity & Guaranty Company appeal. Reversed, and case recommitted to the assessor to determine certain charges.

Geo. Fred Williams and James A. Halloran, for plaintiff.

Henry V. Cunningham, for defendant.

SHELDON, J.

1. We are of opinion that compensation for the services of Mower, the absconding executor, was rightly disallowed upon the facts found by the assessor. While he did not misappropriate the funds of the estate until some time after his appointment and apparently rendered at first some services to the estate, yet his misconduct in failing to deposit or care for the assets so that those interested could know what he did with them, his willful failure to administer properly the personal estate that came to his possession and the proceeds of the real estate which he sold, his misappropriation of large sums of money to his own use, and his final absconding with substantially all that was left of the assets of the estate, making the present proceedings and a new administration necessary, well warranted the conclusion that his services as a whole were of no value. Brooks v. Jackson, 125 Mass. 307. There was here the willful breach of duty which was not found in White v. Ditson, 140 Mass. 351, 362, 4 N. E. 606, 54 Am. Rep. 473, or Rowland v. Maddock, 183 Mass. 360, 67 N. E. 347, though both of these cases recognize the rule that the court may refuse to allow any compensation to a trustee who has been guilty of misconduct. And the surety's liability is the same as that of the executor himself. Choate v. Arrington, 116 Mass. 552, 556.

2. The plaintiff contends that the defendants should have been charged with interest on the sum of $2,254.77 in the hands of Mower, the executor, at the end of a year after his appointment. This sum was not deposited in any bank, and it is not found that the executor received any interest upon it; but the plaintiff contends that if Mower had then filed an account of his doings and shown that this money was lying idle in his hands, the probate court might at the request of the parties in interest have ordered it to be deposited in bank, where it would have drawn some interest, or to be paid over to the executor in New Zealand, by whom it might be paid to the parties finally entitled. We do not assent to this reasoning. The executor was not then in default; he had not himself made use of this money; and he had not been guilty of any breach of trust. His brief delay in accounting is not enough of itself to warrant charging him with interest which he did not receive and which he was under no duty to obtain. Wyman v. Hubbard, 13 Mass. 82;Boynton v. Dyer, 18 Pick. 1, 6. There was no error in refusing to make this charge against the defendants.

The plaintiff does not ask that compound interest be reckoned against the defendants, and we need not consider whether that should have been done. Nor do we understand the defendants to claim that there was any error in the charges of simple interest which were made by the assessor and adopted by the superior court. In our opinion these charges were correctly made. McGeary v. McGeary, 181 Mass. 539, 63 N. E. 917;Forbes v. Ware, 172 Mass. 306, 52 N. E. 447;Forbes v. Allen, 166 Mass. 569, 44 N. E. 1065;White v. Ditson, 140 Mass. 351, 362, 4 N. E. 606, 54 Am. Rep. 473; Brigham v. Morgan, 185 Mass. 27, 69 N. E. 418;Elliot v. Sparrell, 114 Mass. 404;Jennison v. Hapgood, 10 Pick. 77, 104, 110.

3. The defendants concede that they ought to be held for the reasonable expenses incurred for obtaining the removal of Mower and the appointment of an administrator de bonis non with the will annexed. See Rev. Laws, c. 149, § 31, cl. 3, providing that execution in a case like this shall be awarded not only for the full value of the estate not accounted for, but also ‘for all damages caused by his [the executor's] neglect or maladministration.’ The assessor and the superior court have allowed for these expenses the sum of $400, being the amount of Mr. Halloran's bill for services in the matter, and the further sums of $200 for the services of Mr. Williams and $124.44 for the cash paid out in these proceedings. The assessor has found that these were reasonable charges and expenses; and it was agreed that his findings of fact were to be final. Upon the concession of the defendants these sums, so far as they represent services and expenses rendered and incurred in procuring the removal of Mower and the appointment of the new administrator and the obtaining of leave from the probate court to bring this suit, were rightly allowed. Forbes v. Allen, 166 Mass. 569, 44 N. E. 1065;Berry v. Ingalls, 199 Mass. 77, 85 N. E. 191.But upon examination of Mr. Halloran's bill, a copy of which was annexed to the assessor's report, we find that it contains many charges for services in the bringing and prosecution of this suit; and these items, as will...