Murray v. Massachusetts Bonding & Ins. Co.

• Court: Supreme Judicial Court of Massachusetts
• Writing for the Court: RUGG
• Citation: Murray v. Massachusetts Bonding & Ins. Co., 283 Mass. 15, 186 N.E. 377 (Mass. 1933)
• Decision Date: 23 May 1933
• Parties: MURRAY v. MASSACHUSETTS BONDING & INS. CO.

283 Mass. 15

186 N.E. 377

MURRAY

v.MASSACHUSETTS BONDING & INS. CO.

Supreme Judicial Court of Massachusetts, Hampden.

May 23, 1933.

Appeal from Probate Court, Hampden County; J. A. Denison, Judge.

John J. Murray, executor, filed a third account, and from a decree allowing the third account revising the first and second accounts, the Massachusetts Bonding & Insurance Company, surety on the executor's bond, appeals.

Reversed and remanded.

R. H. Holt, of Boston, and A. R. Simpson, of Springfield, for appellant.

E. H. Lyman, Jr., and R. T. King, both of Springfield, for administrator and others.

RUGG, Chief Justice.

This is an appeal by the surety upon the bond of a removed executor from a decree allowing the third account revising the first and second accounts of the executor.

The contention is made that the surety upon the bond of the executor was not entitled to appeal from the decree allowing the account. It is provided by G. L. (Ter. Ed.) c. 215, § 9, that a ‘person aggrieved by * * * decree * * * of a probate court * * * may * * * appeal from the same. * * *’ It has been held that a person is ‘aggrieved’ within the meaning of that word in this section provided it appears that ‘he has some pecuniary interest, some personal right, or some public or official duty resting upon him, affected by the decree.’ Monroe v. Cooper, 235 Mass. 33, 34, 126 N. E. 286, 287;Madden v. Madden, 279 Mass. 417, 181 N. E. 771. The surety upon the bond of an executor who has been removed from his trust falls within this description. It was said, with citation of authorities, in Bassett v. Fidelity & Deposit Co. of Maryland, 184 Mass. 210, 213, 214, 68 N. E. 205, 206,100 Am. St. Rep. 552, ‘a decree of a probate court allowing an account of an executor or other official is binding on all interested in the estate, including sureties on the bond of the accountant. If there is error, the error must be corrected in the probate court, as it may be if there was fraud, or if the party in question had not such notice as to be concluded by the decree.’ It is apparent that the surety in the case at bar would be bound by final decree on the account because proper citation issued and return was made of service, appearance was entered for the surety and counsel for it was present at the time set for hearing. It follows as a corollary that a surety in these circumstances is a party interested in the accounts of the principal, and has a right of appeal from a decree settling those accounts, because such decree establishes the amount of liability of the surety on the bond. Farrar v. Parker, 3 Allen, 556, 558;Bassett v. Fidelity & Deposit Co. of Maryland, 184 Mass. 210, 214, 68 N. E. 205,100 Am. St. Rep. 552. The facts in Farrar v. Parker were somewhat different from those in the case at bar but the governing principle is the same. This rule although not universally prevalent is established by our own decisions and in our opinion is supported by the weight of authority. Weer v. Gand, 88 Ill. 490;Garber v. Commonwealth, 7 Pa. 265; Belcher v. Branch, 11 R. I. 226.

There is no controversy as to the period of time covered by the accounting. Citation on the third account was issued and due return was made thereof. The judge found that an appearance was entered for the surety and its counsel was present at the time set for hearing. The administrator of the goods and estate not already administered was also present. The judge filed supplementary findings of facts of this tenor: ‘Extended hearings were held upon the first and second accounts of this executor wherein it appeared that the inventory filed is false with respect to items 9 to 30 inclusive, in that notes set forth in said inventory against items 9, 11, 13, 15, 17, 19, 21, 23, 25, 27 and 29 did not in fact exist and that what purported to be notes so listed were papers fraudulent and void. In the first account schedule A items 2 to 12 inclusive and item 14 are fictitious. In the second account schedule A items 2 to 13 inclusive and items 15 to 26 inclusive are also fictitious and the notes set forth as items 2, 4, 6, 8, 10 and 12 are fraudulent and void. At the death of the testatrix the executor was indebted to her for money received by him and converted to his own use $68,746.02. With the assistance of a public accountant and unusual cooperation of counsel a revised first and second account stated to be ‘third account revising the first and second accounts' was filed in condensed form and that account I allowed.’ The summary of the third account was as follows:

+-------------------------------------------------------------------+
                ¦”Said accountant charges himself                 ¦                 ¦
                +-------------------------------------------------+-----------------¦
                ¦with the several amounts re-                     ¦                 ¦
                +-------------------------------------------------+-----------------¦
                ¦ceived as stated in Schedule A,                  ¦                 ¦
                +-------------------------------------------------+-----------------¦
                ¦herewith exhibited,                              ¦$97,901.63       ¦
                +-------------------------------------------------+-----------------¦
                ¦”And asks to be allowed for sun-                 ¦                 ¦
                +-------------------------------------------------+-----------------¦
                ¦dry payments and charges, as                     ¦                 ¦
                +-------------------------------------------------+-----------------¦
                ¦stated in Schedule B, herewith                   ¦                 ¦
                +-------------------------------------------------+-----------------¦
                ¦exhibited,                                       ¦5,892.08         ¦
                +-------------------------------------------------+-----------------¦
                ¦”Balance as stated in Schedule C,                ¦                 ¦
                +-------------------------------------------------+-----------------¦
                ¦herewith exhibited,                              ¦$92,009.55.”     ¦
                +-------------------------------------------------------------------¦
                ¦Schedule A of the third account contained two items only asfollows:¦
                +-------------------------------------------------------------------¦
                ¦                                                 ¦”Dolls.Cts.      ¦
                +-------------------------------------------------+-----------------¦
                ¦”Amount of personal property ac-                 ¦                 ¦
                +-------------------------------------------------+-----------------¦
                ¦cording to inventory, or                         ¦57,886.83        ¦
                +-------------------------------------------------+-----------------¦
                ¦”Balance of next prior account                   ¦                 ¦

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