Probate Court of E. Providence v. McCormick

• Court: Rhode Island Supreme Court
• Writing for the Court: CONDON, Justice.
• Citation: Probate Court of E. Providence v. McCormick, 56 R.I. 308, 185 A. 592 (R.I. 1936)
• Decision Date: 17 June 1936
• Docket Number: Nos. 7618, 7619.,s. 7618, 7619.
• Parties: PROBATE COURT OF EAST PROVIDENCE v. McCORMICK et al. (two cases).

185 A. 592

PROBATE COURT OF EAST PROVIDENCE

v. McCORMICK et al. (two cases).

Nos. 7618, 7619.

Supreme Court of Rhode Island.

June 17, 1936.

Cases certified from Superior Court, Providence and Bristol Counties.

Action by the Probate Court of East Providence for the benefit of Chester E. Butts, administrator with the will annexed de houis non of the estate of Joseph McCormick, deceased, against Joseph McCormick, Jr., as executor of the estate of Joseph McCormick, deceased, and another, and action by the Probate Court of East Providence for the benefit of the Rhode Island Hospital Trust Company and others against Joseph McCormick, Jr., executor of the estate of Joseph McCormick, deceased, and another, which were certified from superior court under General Laws 1923, c. 348, § 5.

Certain questions answered, and papers in each case remanded for further proceedings.

Tillinghast, Collins & Tanner, Francis J. O'Brien, Edwards & Angell, James C Collins, Harold E. Staples, Robert W. Hankins, and Elmer E. Tufts, Jr., all of Providence, for plaintiffs.

Hinckley, Allen, Tillinghast & Wheeler, Arthur M. Allen, and Noel M. Field, all of Providence, and Phipps, Durgin & Cook, Robert A. B. Cook, and Jonathan B. Rintels, all of Boston, Mass., for defendant Standard Accident Ins. Co.

CONDON, Justice.

The superior court, in which these cases are pending, has, in accordance with chapter 348, § 5, of the General Laws 1923, certified to this court certain questions for our determination.

In the first action, Ex. No. 7618, which is for the benefit of Chester E. Butts, administrator c. t. a. d. b. n., and which is hereafter referred to as the administrator's action, the questions are as follows:

"1. Is the right of action granted an administrator c. t. a. d. b. n. appointed to succeed an executor, upon the bond of such executor against all parties liable thereon, provided for in section 16 of chapter 363 of General Laws of Rhode Island (1923), limited to breaches of the conditions of such bond arising from or involving the neglect or refusal of such executor to deliver to such administrator c. t. a. d. b. n. the goods, effects, books of account, securities, documents and other papers belonging to the estate held by such executor?

"2. Should the defendants' demurrer be sustained as to all counts of the plaintiffs declaration for the reason that none of said counts allege that the defendant Joseph McCormick, Jr. neglected or refused to deliver to said Chester E. Butts (appointed administrator c. t. a. d. b. n. to succeed said Joseph McCormick, Jr. as executor) any of the goods, effects, books of account, securities, documents or papers whatsoever belonging to the estate of said Joseph McCormick, deceased?"

In the second action, Ex. No. 7619, which is for the benefit of Rhode Island Hospital Trust Company et al., and which is hereafter referred to as the creditors' action, the first two questions are:

"1. Is an action against an executor and the surety on his bond (the executor having been theretofore adjudged guilty of unfaithful administration and, removed and an administrator d. b. n. c. t. a. having been duly appointed and qualified), brought by a creditor who is proceeding under the provisions of chapter 371, sections 13, 15 and 16 of the General Laws, barred or suspended by the fact that no interested person has, prior to the commencement of such action, requested the administrator d. b. n. c. t. a. in writing to bring action upon the executor's bond under the provisions of chapter 363, section 16, of the General Laws or by the fact that such administrator d. b. n. c. t. a. has not refused or neglected, after written request, to bring such an action?

"2. Does the pendency in the Superior Court of Law Action No. 93201, entitled Probate Court of the Town of East Providence For the Benefit of Chester E. Butts, Administrator c. t. a. d. b. n. v. Joseph McCormick et al. bar or suspend the right of creditors of the estate of the estate of Joseph McCormick to maintain this action?"

In this action, in accordance with section 1, c. 348, Gen.Laws 1923, there has also been certified for our determination a constitutional question stated in the following form: "3. Are sections 13, 14, 15, 16, 17, 18, 19, 20 and 21 of chapter 371 and sections 3, 4, 5, and 6 of chapter 344 of the General Laws or any of such sections of such chapters, unconstitutional as applied to the defendant Standard Accident Insurance Company for the reasons (or any of them) stated in the pleadings of the defendant Standard Accident Insurance Company?" We shall defer discussion of this question until we have considered and answered the questions certified pursuant to said section 5.

For convenience of statement, the creditors who are directly involved in the second case will be hereinafter referred to as "the creditors." In each case the defendants are Joseph McCormick, Jr., as principal, and the Standard Accident Insurance Company of Detroit, Mich., as surety on the bond of Joseph J. McCormick, Jr., executor under the will of his father, Joseph McCormick. Maladministration by said executor of the estate of said Joseph McCormick is the basis of the cause of action in each case. The administrator's action is brought under chapter 363, § 16, Gen.Laws 1923, to recover for the loss of assets through various kinds of mismanagement of the estate by the executor, Joseph McCormick, Jr., who was removed by the probate court. The creditors' action is brought under chapter 371, §§ 13 to 23, in behalf of a number of creditors of the estate to enforce payment of their claims against said estate, which were duly filed, and were not disallowed.

Joseph McCormick, Jr., during almost two years from the date of his qualification as executor of his father's estate, failed to pay claims of creditors against the estate, which had not been disallowed or which had been established by judgment after disallowance, and he had not during that time represented the estate to be insolvent. Consequently, several of such creditors, in accordance with said chapter 371, § 16, petitioned the probate court of the town of East Providence to remove the said Joseph McCormick, Jr., from his office of executor for unfaithful administration. After hearing, the probate court entered its decree finding him guilty of unfaithful administration and removing him as such executor. In his stead, the above-named Chester E. Butts was duly appointed administrator c. t. a. d. b. n.

These creditors then brought their action against Joseph McCormick, Jr., and the surety company on his executor's bond under said chapter 371, § 16. They allege a breach of said bond by said McCormick in that he had failed to pay the claims of these creditors and that he had by reason thereof, and for other reasons, been held guilty of unfaithful administration.

The administrator brought his action against the same defendants, subsequent to the creditors' action, under chapter 363, § 16. His declaration is in three counts. The first count alleges merely the execution of the bond (but no breach of the condition thereof), and the failure to pay the sum named therein. The second count alleges execution of the bond and in general terms a breach of all its conditions, including an allegation that he "did not administer according to law and the will of the testator all personal property," etc. The third count alleges execution of the bond and a series of specific acts and omissions of the executor as breaches of its conditions, together with a general clause designed to include every breach of which the executor could have been guilty.

In each case, the defendants filed demurrers and pleas which raised the questions that have been certified to this court. These questions are wholly questions of law, and the answers to be given thereto depend upon the construction given to the language in the statutes which are relied upon as authorizing such suits as are now pending against the defendants in the superior court.

The creditors contend that, irrespective of whatever right to sue is conferred upon the administrator d. b. n. by chapter 363, § 16, their right to sue on the executor's bond under chapter 371, § 16, remains unimpaired and may be availed of by them, notwithstanding action taken by the administrator on said bond. They strongly urge that these two remedies are separate and distinct, and for the protection of distinctly different rights. They further say that their action is personal to them and has nothing to do with the protection of the estate, whereas the administrator's action is brought to recover for assets of the estate wasted or misappropriated by the executor. They point out further that their action is for a breach of the executor's bond for which no action could be brought by the administrator. The defendant insurance company, on the other hand, contends that creditors, under the statute, are entitled to maintain their action only if the administrator d. b. n. neglects or refuses to sue on the executor's bond after written request, and further that chapter 363, § 16, not only authorizes, but requires an administrator d. b. n. to sue upon his predecessor's bond for all acts of maladministration. It further urges that the provisions of chapter 371, § 16, authorizing suit by creditors on the executor's bond necessarily are subject to the provisions of chapter 363, § 16, where an administrator d. b. n. has been appointed.

Chapter 363, § 16, Gen.Laws 1923, was originally chapter 184, § 27, Pub.St. 1923, and then read as follows: "An administrator appointed to succeed an executor or administrator resigning or removed shall ask for, demand and receive of the executor or administrator resigning or removed, his heirs, executors or administrators or guardian, all the goods and effects of the deceased or of the ward, and also all books of account, bonds, notes or other securities, documents or papers whatsoever, touching...