National Bank of Troy v. Stanton
| Decision Date | 06 January 1875 |
| Citation | 116 Mass. 435 |
| Parties | National Bank of Troy v. Rachel W. Stanton, executrix |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Argued September 16, 1874 [Syllabus Material]
Hampshire. Contract on a promissory note for $ 1324.15, made by the Hampden Manufacturing Company, and indorsed by Jabez Stanton, deceased, who, by his will, made his widow, Rachel W. Stanton, executrix and residuary legatee.
In December, 1872, the Probate Court admitted the will to probate, and appointed Mrs. Stanton executrix, and approved a bond filed by her, with sureties, in the sum of $ 3000, to pay debts and legacies.
The plaintiff made a demand on her for payment of the note, and the same not being paid, on May 12, 1873, brought this action, returnable at June term of the Superior Court, against her as executrix of Jabez Stanton. The writ commanded the officer to attach the goods and estate of the testator in her hands; and the declaration alleged the making and indorsement of the note, demand of payment on the maker, its neglect to pay, and due notice to the testator of nonpayment, the probate of the will, the defendant's acceptance of the trust of executrix and giving bond to pay debts and legacies, that the note was a just debt against the testator, and that the defendant owed the plaintiff the amount thereof and interest.
The Probate Court in June, 1873, upon the petition of another creditor, ordered that she should give a new bond with sureties in the sum of $ 20,000, and, after notice to her to show cause against it, and she not appearing nor filing such a bond, on August 5, 1873, passed an order removing her from her trust as executrix, and appointed Enos Parsons administrator de bonis non, with the will annexed, who gave bond in the usual form, with sureties to the satisfaction of the judge of probate, for the performance of his trust.
At October term, 1873, of the Superior Court, Mrs. Stanton filed an answer, alleging her removal and the grant of administration to Parsons, and therefore that she ought not to be held to answer to this action.
At the same term, Parsons applied for leave to come in and take upon himself the defence of the action; and at February term 1874, (having meanwhile represented the estate insolvent, and commissioners having been appointed by the Probate Court to receive proof of debts against it,) was permitted to appear and file an answer, setting up, 1st. That the action was prematurely brought, namely, within one year from the approval and filing of the bond given by the executrix. 2d. The representation of insolvency and appointment of commissioners, and that the plaintiff's claim was provable before the commissioners and not in this action. 3d. His ignorance of the facts alleged in the declaration, so that he could neither admit nor deny, but left the plaintiff to prove the same.
No question was made by Mrs. Stanton as to her liability upon the note in suit, except by reason of the order removing her from the trust of executrix. There are not known to be any assets of the estate, except real estate valued at about $ 3000, and Mrs. Stanton's bond, so far as that can be deemed assets.
By consent of parties, and before verdict, the case was reported by Aldrich, J., for the consideration of this court. If, upon the facts above stated, the action could be maintained against Mrs. Stanton, either as executrix or as residuary legatee, judgment to be rendered for the plaintiff for the amount of its claim in such form as this court might determine; if it could not be maintained against her, but might against the administrator de bonis non, the case to stand for trial; otherwise, the plaintiff to become nonsuit.
Case Nonsuit.
D. W. Bond, for the plaintiff.
E. B. Gillett & H. B. Stevens, for the executrix.
C. Delano, for the administrator de bonis non.
The executrix and residuary legatee, having given bond to pay debts and legacies, would doubtless be estopped to deny assets in any action to enforce the personal obligation thereby assumed by her; as, for instance, in an action upon a promissory note given by her for a debt of the testator, or an action to recover a legacy. Stebbins v. Smith, 4 Pick. 97. Jones v. Richardson, 5 Met. 247. Colwell v. Alger, 5 Gray 67.
But the present action is not brought upon her bond, or in any form against her personally. It is an action upon a contract of the testator, and brought against her merely as his representative; the writ commands the officer to attach the goods and estate of the testator in her hands; and any judgment recovered...
To continue reading
Request your trial
-
Stoneham Five Cents Sav. Bank v. Johnson
... ... exceptions under G.L.(Ter.Ed.) c. 231, § 113. See Dorr v ... Tremont National Bank, 128 Mass. 349, 354-357; ... Parker v. Nickerson, 137 Mass. 487, 491; Zeo v ... Loomis, 246 ... 1060,92 Am.St.Rep. 430; Johnson v. Ames, 11 Pick ... 173, 175, 180.National Bank of Troy v. Stanton, 116 ... Mass. 435, 439; Harlow v. Dehon, 111 Mass. 195, 198; ... Cowley v. Twombly, ... ...
-
Zwick v. Goldberg
...in that capacity. She had no right to continue to defend the action and no judgment could be rendered against her. National Bank of Troy v. Stanton, 116 Mass. 435;Statkunas v. L. Promboim & Son Inc., 274 Mass. 515, 174 N.E. 919. Our statute, G.L.(Ter.Ed.) c. 209, § 6, granting certain privi......
-
Harrison v. Carter
...Savage, 1 How. 282, 11 L.Ed. 132; Lunsford v. Lunsford, 122 Ala. 242, 25 So. 171; More v. More, 127 Cal. 460, 59 P. 823; National Bank of Troy v. Stanton, 116 Mass. 435; Cox v. Martin, 75 Miss. 229, 21 So. 611, 36 L.R.A. 800, 65 Am.St.Rep. 640; Burlington & M. R. Co. v. Crockett, 17 Neb. 57......
-
Breen v. Burns
...after the appointment of the administrator and is not required to wait six months before doing so. G. L. c. 197, § 1; National Bank of Troy v. Stanton, 116 Mass. 435;Studley v. Willis, 134 Mass. 155. The resemblance between the liability of an estate for the expenses of the last sickness re......