Murray v. Massachusetts Bonding and Ins. Co.

• Court: Supreme Judicial Court of Massachusetts
• Citation: Murray v. Massachusetts Bonding and Ins. Co., 283 Mass. 15 (Mass. 1933)
• Decision Date: 22 May 1933
• Parties: JOHN J. MURRAY v. MASSACHUSETTS BONDING AND INSURANCE COMPANY.

283 Mass. 15

JOHN J. MURRAY v. MASSACHUSETTS BONDING AND INSURANCE COMPANY.

Supreme Judicial Court of Massachusetts, Hampden.

May 22, 1933

September 22, 1932.

Present: RUGG, C.

J., CROSBY, WAIT DONAHUE, & LUMMUS, JJ.

Probate Court Appeal, Rule 10. Rules of Court. Executor and Administrator Accounts. Words, "Aggrieved."

The surety upon the bond of an executor who has been removed by a probate court is a person "aggrieved" by a decree charging the executor upon his account, and, under G. L. (Ter. Ed.) c 215, Section 9, has a right to appeal therefrom.

A decree of a probate court allowing an account of an executor, which was described as "third account revising the first and second accounts," and which was found by the court to have been stated with "the assistance of a public accountant and unusual cooperation of counsel," was improper where it appeared from the judge's findings that such revised account in

Schedule A contained two items, one entitled "Amount of personal property according to inventory," and the other entitled "Gain over inventory upon revised account by assets not heretofore listed," and that the sums set opposite such items both were false.

PETITION, filed in the Probate Court for the county of Hampden on April 12, 1932, for the allowance of a third account of John J. Murray as executor of the will of Jane F. King, late of Springfield.

Proceedings in the Probate Court before Denison, J., are described in the opinion. The surety upon the executor's bond appealed from a decree allowing the account.

R. H. Holt, (A.

R. Simpson with him,) for Massachusetts Bonding and Insurance Company.

E. H. Lyman, Jr., (R.

T. King with him,) for Raymond T.

King, administrator de bonis non with the will annexed, and others.

RUGG, C.J. 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, Section 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. Madden v. Madden, 279 Mass. 417 . 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, "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. 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 Penn. St. 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 received as stated in Schedule A, herewith exhibited, . . . $97,901.63 And asks to be allowed for sundry 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 as follows: "Dolls. Cts. Amount of personal property according to inventory, or . . . . . . 57,886 83...