State v. Donahue

• Citation: 82 Conn. 308,73 A. 763
• Court: Supreme Court of Connecticut
• Decision Date: 20 July 1909
• Parties: STATE EX REL. MORIARTY v. DONAHUE et al.

73 A. 763

82 Conn. 308

STATE EX REL. MORIARTY

v. DONAHUE et al.

Supreme Court of Errors of Connecticut.

July 20, 1909.

Appeal from Superior Court, New Haven County; William L. Bennett, Judge.

Action by the State, on relation of Nellie Donahue Moriarty, as administratrix, etc., against Mary Ann Donahue, as administratrix, and others, on probate bonds for failure of defendant administratrix to pay plaintiff a distributive share of the estate of Bridget Donahue. From an order sustaining a demurrer to defendants' answers and overruling others, and from a judgment accordingly, all the parties, except defendant Seery, appeal. Affirmed.

John O'Neill and Finton J. Phelan, for plaintiff.

Edward L. Seery, for defendants.

THAYER, J. On February 21, 1906, the defendant Mary A. Donahue was appointed administratrix de bonis non of the estate of her mother, Bridget Donahue, and gave a probate bond, with the defendant Seery as surety, for the faithful discharge of her duties. On August 16, 1906, having been ordered by the court of probate to sell all the real estate of the deceased, she gave another bond, with the defendant Grelle as surety, "to secure the distribution of the assets of said sale according to law." On September 19, 1908, she settled her administration account, which showed that there was then in her hands in cash to be distributed the sum of $23,171.80. Upon her application the court of probate found that the only persons entitled to the estate at the time of the death of Bridget were her five children and only heirs at law, and that each of these was entitled to, and that there should be distributed to them, respectively, one equal one-fifth share of the estate remaining in the hands of the defendant administratrix. One of these children was Thomas Donahue, who was living at the time of his mother's death, but died shortly thereafter. The defendant Mary A. Donahue neglected to pay over the one-fifth of Bridget's estate to the estate of Thomas. This action is brought for the benefit of Nellie D. Moriarty, the administratrix of his estate. These facts are alleged in the complaint in one count, and the defendant Mary A. Donahue, administratrix of Bridget's estate, and her sureties on the two bonds are made parties defendants.

The defendants filed separate answers. That of Mary A. Donahue alleges, in substance, the following facts: The entire personal estate received by her as administratrix of Bridget's estate amounted to $2,345.50, and was required for, and actually expended in, the payment of the debts and expenses of settlement of the estate. At the time of her death Bridget was possessed of an undivided one-half interest in five pieces of land in Waterbury, which she had inherited from her brother Patrick Coyle. After her death the court of probate distributed to her estate as her share of her brother's estate two of these pieces of land. Prior to such distribution, but after her death, her son Thomas, above mentioned, mortgaged his interest in the entire five pieces of land to one Downey, who later foreclosed the mortgage against the administratrix and heirs at law and representatives of Thomas; the judgment providing that, unless the defendant in that action should pay to Downey $4,009.13 on or before the first Monday in July, 1908, they should be foreclosed of all interest in the mortgaged premises, and they have never paid the amount found due or appealed from the judgment. On February 1, 1907, pursuant to the order of the court of probate above mentioned, Mary A. Donahue as administratrix sold all the real estate which belonged to Bridget's estate for $23,000. The defendant Seery in his answer sets up substantially the same facts as the defendant Donahue, but in two defenses. The first repeats the allegations relating to the real estate. The second alleges, in substance, that the personal property amounted to only $2,345.50, and has been fully accounted for by the administratrix to the acceptance of the court of probate. The answer of the defendant Grelle was substantially like that of the other two defendants relating to the real estate—omitted any reference to the personal property. The plaintiff demurred to each of these defenses. The questions raised by the demurrers are: (1) Whether the fact that Thomas Donahue mortgaged his interest in his mother's estate to Downey, and the latter's foreclosure of the mortgage, justified Bridget's administratrix in refusing to pay over to the estate of Thomas a one-fifth share in the estate as ordered by the court of probate; (2) whether, if she was not justified by those facts in refusing to pay it over, such refusal constituted a breach of the first or general administrator's bond on which Seery was surety. The latter question is raised by the plaintiff's appeal; the former by the defendants'.

The second bond, upon which Grelle was surety, was given at the time the sale of the real estate was ordered, and its purpose as stated in the condition was to secure the proper distribution of the proceeds of the sale. It appears that all the property for distribution was the proceeds of the sale. The court of probate has made an order directing to whom it shall be distributed, and the order has not been appealed from. That the refusal of the administratrix to distribute to the...