Potter v. Sturdivant

Decision Date01 May 1826
Citation4 Me. 154
PartiesPOTTER, Judge, & c. v. STURDIVANT, adm'r
CourtMaine Supreme Court

[Syllabus Material]

THIS was an action of debt on the bond given by Sylvanus Drinkwater, as administrator on the estate of Pyam Prince for the benefit of whose children this suit was commenced against Drinkwater's administrator.

The ground of the plaintiff's claim, as indorsed on the writ was for mismanaging and squandering the estate of Prince.

In a case stated for the opinion of the court, the point originally presented was, whether the administrator was justifiable in defending, at the expense of the estate, the action of Daniel Drinkwater against him in that capacity. That action was a writ of entry on a mortgage made by Prince to the demandant, and it was resisted by the administrator representing creditors as well as heirs, on the ground that nothing was due to the mortgagee, and that the transaction was fraudulent and void. It is reported in 4 Mass. 354, where it appears that the defence was not admitted as legal, and it was said by Parsons C. J. that the administrator ought in equity to pay the costs of the defence out of his own pocket.

It was agreed in the present case that the defence of that action was advised by eminent counsel, and undertaken with the concurrence of all the guardians of Prince's children, they then being minors; and that the expenses were charged and settled in the administration accounts, the first of which was settled in 1805, and the last in October 1808, on all which accounts notice was duly issued, and at the settlement of the last of which one of the guardians was present. The estate was represented insolvent

The proceedings in the Probate office were referred to as parts of the case, and copies of them annexed; and it was agreed that if the opinion of the court should be in favor of the plaintiff, the defendant should be defaulted and heard in chancery.

Todd, for the plaintiff, argued that the conduct of Drinkwater, in charging the expenses of defending the former suit to the estate of his intestate, and procuring the allowance of them by a decree of the Judge of Probate, after they had been declared chargeable in equity to himself alone, by the highest tribunal, was fraudulent; and that a decree thus obtained, could not protect him. Walker v. Witter Doug. 5. On any principle the decree is no bar, its merits being examinable by this court whenever the record is before them, whether by appeal, or by suit on the bond. Dean v. Dean 3 Mass. 258. And he relied on the opinion of the court in Drinkwater v. Drinkwater, admr. 4 Mass. 354, as the ground of charging the administrator in this action.

On examination of the papers annexed to the statement of facts, it appeared that Drinkwater had never in fact returned any inventory of Prince's estate, according to the condition of his bond; but that the paper filed and recorded in the Probate office as an inventory, and made the basis of all the subsequent proceedings, was made out by three appraisers appointed and sworn by a Justice of the peace, before the grant of any administration, according to an irregular practice sometimes allowed at that day. This paper, however, contained a true list of all the estate which came to the hands of the administrator.

Todd hereupon contended that he ought not to be admitted to a hearing in chancery, the neglect to return an inventory being a forfeiture of the whole penalty of the bond, by Stat. 1786, ch. 55, sec. 2, which was in force when this bond was given. The right to this penalty was fixed at the time of the breach; and it was not in the power of the legislature to take away or impair it by any subsequent statute. Wales v. Stetson 2 Mass. 146. 6 Bac. Abr. Statute C. Calder & ux. v. Bull 3 Dal. 397. Vanhorne v. Dorrance 2 Dal. 304. Society & c. v. Wheeler 2 Gal. 134. Dash v. Van Kleeck 7. Johns. 477. Call v. Hagger & al. 8 Mass. 423. Foster & al. Exr's v. The Essex Bank 16 Mass. 271.

Greenleaf, for the defendant, contended that it was the duty of the administrator to defend the suit brought upon the mortgage, he being sued in that capacity, and representing creditors as well as heirs; because, by proving that nothing was due, he would have prevented the mortgagee from obtaining judgment. Vose v. Handy 2 Greenl. 322. Even the costs of suits commenced by executors may be charged upon the assets in their hands, if prudently commenced; Hardy v. Call 16 Mass. 532. Brooks v. Stevens 2 Pick. 68; much more the costs of suits against them.

If the paper returned as an inventory is not a performance of the letter of the condition of his bond, yet the defendant ought to be admitted to a hearing in chancery; this being a case to which the Stat. 1786, ch. 55, sec. 2, was not intended to apply. The severe exaction of the whole penalty of the bond authorized by that statute, was enacted against the contemptuous refusal, or grossly culpable neglect of an administrator to exhibit any account whatever of his doings. In such cases, if he had returned an inventory, he was chargeable with its whole amount; if not, he was rendered liable to pay the whole penalty of his bond. It could never...

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4 cases
  • State ex rel. McKittrick v. Bair
    • United States
    • Missouri Supreme Court
    • June 23, 1933
    ...344; Thompson v. Bassett, 5 Ind. 535; State v. Youmans, 5 Ind. 280; Tobin v. Hartshorn, 69 Iowa, 649, 29 N.W. 764; Potter v. Sturdivant, 4 Me. 154; Railroad Co. v. Austin, 21 Mich. 390; Davidson v. Witthaus, 106 App. Div. 182; West Troy Fire Dept. v. Ogden, 59 How. Pr. 21; Butler v. Palmer,......
  • State ex rel. McKittrick v. Bair
    • United States
    • Missouri Supreme Court
    • June 23, 1933
    ... ... 344; Thompson v. Bassett, 5 Ind. 535; State v ... Youmans, 5 Ind. 280; Tobin v. Hartshorn, 69 ... Iowa 649, 29 N.W. 764; Potter v. Sturdivant, 4 Me ... 154; Railroad Co. v. Austin, 21 Mich. 390; ... Davidson v. Witthaus, 106 A.D. 182; West Troy ... Fire Dept. v ... ...
  • Forsyth v. City of Wheeling
    • United States
    • West Virginia Supreme Court
    • March 25, 1882
    ...Mich. 335. William Erskine for appellee cited the following authorities: 8 Gratt. 632; Angell on Highways secs. 161-163; 19 Ohio St. 238; 4 Me. 154; 6 Mich. 176; Wood Law of Nuisances sec. 249; 4 Call 374; 1 R.I. 93; 12 B. Mon. 617; 3 Rand. 572; 15 Gratt. 528; 5 Pet. 278; 10 W.Va. 287; 24 G......
  • Forsyth v. City of Wheeling.
    • United States
    • West Virginia Supreme Court
    • March 25, 1882
    ...10 Mich. 335. William Ershine for appellee cited the following authorities: 8 Gratt. 632; Angell on Highways §§ 161-163; 19 Ohio St. 238; 4 Me. 154; 6 Mich. 176; Wood Law of Nuisances § 249; 4 Call 374; 1 R. I. 93; 12 B. Mon. 617; 3 Rand. 572; 15 Gratt. 528; 5 Pet. 278; 10 W. Ya. 287; 24 Gr......

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