Pierce v. Gould

• Citation: 143 Mass. 234,9 N.E. 568
• Parties: PIERCE, Ex'r v. GOULD.
• Decision Date: 06 January 1887
• Court: United States State Supreme Judicial Court of Massachusetts

143 Mass. 234

9 N.E. 568

PIERCE, Ex'r v. GOULD.

Supreme Judicial Court of Massachusetts, Essex.

January 6, 1887

COUNSEL

Ira A. Abbott and Francis H. Pearl, for appellant.

The time allowed for an appeal by a person aggrieved, by Pub.St.Mass. c. 156,§§ 6, 7, had not expired when the payment of June 20, 1885, was made. Therefore, if the appellant was "a person aggrieved" within the meaning of section 6, her rights were not affected. The right of appeal in such cases is not confined to parties. Farrar v. Parker, 3 Allen, 556, 557. The appellant had originally the right of appeal. Smith v. Sherman, 4 Cush. 411. A person may appeal who has a pecuniary interest which may be remotely affected by the decree appealed from. Lawless v Reagan, 128 Mass. 592, 593; Hayden v. Stoughton, 5 Pick. 528-536. See Dole v. Johnson, 3 Allen, 364. As an heir at law, the appellant can appeal from the allowance of the account if there is property not devised or bequeathed by the will. Kent v. Dunham, 14 Gray 279-281; Smith v. Haynes, 111 Mass. 346; Gen.St. c 92, § 28; Lee's Appeal, 18 Pick. 285, 290; Smith v. Bradstreet, 16 Pick. 264; Boynton v. Dyer, 18 Pick. 1.

W.D. Northend, for appellee.

We submit that said Noyes, as such administrator de bonis non, was "the sole representative of the estate,--the trustee for all persons having an interest in it,--and, as such, it was his province and duty to see that the account was settled correctly. He is aggrieved in his property, if there be any failure to account for all that is due to the estate." Wiggin v. Swett, 6 Metc. 198; Downing v. Porter, 9 Mass. 385. The provisions of statute that any person aggrieved, etc., may appeal, does not apply to an heir or legatee. See Farrar v. Parker, 3 Allen, 556, and cases cited. None of the appellants in these cases were heirs or legatees. An heir has no more right to appeal, in such a case as this, than he has from the allowance and payment by an administrator de bonis non of a note against the estate of his testate. If he does not properly administer his trust, he is liable on his bond.

OPINION

HOLMES, J.

This is an appeal from a decree of the probate court allowing the final account of the executrix of the will of Thomas Pritchard, Jr. The administrator de bonis non of Pritchard assented to the account as allowed. The appellant is a sister of the testator, admitted to be entitled to a share of a reversion in a fund, either under the will or under the statute of distribution, it is immaterial which. The debts and charges against the estate have been paid. The appeal was dismissed on the ground that the appellant had no right to enter an appeal.

There is no doubt that the administrator de bonis non might have appealed if he had not seen fit to assent to the account, ( Wiggin v. Swett, 6 Metc. 194;) but we are of opinion that the appellant has the same right, and is a "person aggrieved" within Pub.St. c. 156, § 6. It is settled that the right is not confined to those who would have been legal parties to the suit under proceedings at common law or in equity, but extends to others whose pecuniary interests are affected. Farrar v. Parker, 3 Allen, 556; Smith v. Sherman, 4 Cush. 408; Boynton v. Dyer, 18 Pick. 1; Smith v. Bradstreet, 16 Pick. 264; Lee's Appeal, 18 Pick. 285; Lawless v. Reagan, 128 Mass. 592.

The appellant's pecuniary interests are affected by the decree in this case. In the first place, it will be observed that this is not a case where a legatee is seeking to enforce a remedy against a debtor where an executor refuses to sue, ( Bowsher v. Watkins, 1 Russ. & M. 277; Yeatman v. Yeatman, 7 Ch.Div. 210,) or against a person otherwise accountable to the estate from which his legacy is to come, ( Downing v. Porter, 9 Mass. 386.) Such claims are one degree more remote than the present. There is no privity between the legatees and the debtor. But this is a question between the legatee and the representatives of her testator's estate. The appellant had a direct interest in the fund in the hands of the accounting executrix before the administrator de bonis non was appointed. The executrix was not a mere debtor to the estate in her own hands. Marvel v. Babbitt, ante, 566. A residuary legatee "has a lien upon the fund as it is, and may come here for the specific fund." McLeod v. Drummond, 17 Ves. 152, 169. See Wilson v. Moore, 1 Mylne & K. 126, 337.

As the amount the appellant would receive depended on the amount of the estate when all debts were paid, and as she was entitled to insist on receiving that amount from the estate as an identified trust fund, she was entitled to insist on the estate being kept up to its proper amount, by whatever person held it for the time being. She therefore had a right against the executrix, independent of the administrator de bonis non, that the executrix should turn over the whole amount for which she was accountable, and, if the executrix had not kept that amount of assets distinct, to have the trust fund made good by suit upon her bond. The appellant must have the right, against the administrator de bonis non, in like manner to insist on his collecting and receiving the whole trust fund which ought to come to his hands. The latter is now a mere dry trustee, as all debts and charges are paid. See Bacon v....