McKim v. Doane
| Citation | 137 Mass. 195 |
| Court | United States State Supreme Judicial Court of Massachusetts |
| Decision Date | 09 May 1884 |
| Parties | John W. McKim, Judge of Probate, v. George A. Doane & others |
Suffolk.
Bill dismissed.
J. S Patton, for the plaintiff.
J Willard & F. L. Hayes, for the defendants.
This is a bill in equity, brought on September 5, 1881, under the provisions of the Gen. Sts. c. 101, §§ 31-34, against the devisees and legatees of Sarah P. Doane and of Isaac Emery, the persons last named being sureties on the bond of George A. Doane, who, on January 1, 1866, was appointed trustee under the will of Samuel B. Doane.
The statutes of the Commonwealth provide that, after the settlement of an estate by an executor or administrator, and after the expiration of the time limited for the commencement of actions against him by the creditors of the deceased, the heirs, next of kin, devisees, and legatees of the deceased shall be liable for all debts which could not have been sued for against the executor or administrator, and for which the creditor could not establish a claim to have funds retained for the purpose of paying them. But it is a condition of this liability that the action at law or suit in equity to enforce it must be "commenced within one year next after the time when such right of action accrues." Gen. Sts c. 101, §§ 31-34. Pub. Sts. c. 136, §§ 26-29.
Prior to the year 1877, George A. Doane misapplied the trust fund and the cestuis que trust had knowledge of the defalcation early in that year. On February 25, 1878, George A. Doane, after due notice, was removed from his trust, and, on the same day, Sidney D. Shattuck was appointed trustee in his place. The decree appointing Shattuck was in the usual form, containing the recital, "all persons interested in said trust having been duly notified and assenting thereto, and no one objecting thereto." A letter of appointment was duly issued to Shattuck, who exhibited it to George A. Doane, and made a demand for the trust fund, within ten days after his appointment. Doane refused to pay over the trust fund, alleging that the appointment was invalid, because no notice was given to him; and that he was entitled to notice, being not only trustee, but also one of the cestuis que trust under his father's will.
Assuming that Doane was entitled to notice, and that the failure to give him notice was an irregularity in the proceedings, we think his remedy was by an appeal from the decree appointing Shattuck. The court had jurisdiction of the subject matter, and the appointment of Shattuck as a trustee cannot be impeached collaterally for an irregularity in the proceedings not affecting the jurisdiction.
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