Stetson v. Moulton
| Decision Date | 11 January 1886 |
| Parties | STETSON and others v. MOULTON, Adm'r, and others. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
OPINION TEXT STARTS HERE
The facts appear in the opinion.
S. Lincoln and G.B. Ives, for plaintiffs.
C. Sewall, for defendants.
This is a bill in equity to which a demurrer has been filed. The first cause of demurrer assigned to the bill is that it does not state such a case as entitles the plaintiffs to the relief prayed for, and that it does not appear that the plaintiffs have not a remedy for the matters alleged by the usual and ordinary course of law. The substance of the bill is as follows: M.E. Skerry was appointed administratrix of the estate of Elizabeth F. Hodgdon, her mother, and while holding this trust she distributed among the heirs, without decree of the probate court, a considerable portion of the estate, and, with unimportant exceptions, converted the remainder thereof to her own use. She was removed from her office of administratrix, and the plaintiff Thorndike, who, with the plaintiff Stetson, was a surety on the bond given by Skerry, was appointed her successor, and gave bond with the plaintiff and others as sureties. With the exception of certain promissory notes, which she delivered to her successor, no property of the intestate was delivered to him by Skerry, or was received by him. Five days after his appointment Skerry was adjudged insolvent, and the defendant Sewell was appointed assignee of her estate. Thorndike resigned his trust as administrator, and the defendant Moulton was appointed in his place, and brought suit in October, 1882, against Thorndike and the sureties on his bond. In November, 1883, final judgment was rendered against the plaintiffs for the full amount of the property of the intestate which came into the hands of Skerry, less the promissory notes by her delivered to Thorndike and the amount of certain small accounts paid by her. Choate v. Thorndike, 138 Mass. 371. No allowance was made in said judgment for the amount of property of the intestate distributed to the heirs by Skerry as administratrix, nor for her own interest in the estate which she had converted to her own use. The present plaintiffs have paid this judgment in full to the defendant Moulton, administrator. The estate is not fully settled, and the interests of the heirs can be accurately determined upon the settlement of accounts. The plaintiffs claim that, if the estate is distributed in the probate court according to the ordinary rules of distribution, the heirs of the estate, who have received advances, and Skerry or her assignee, will be twice paid, to the extent of the payments already made and the interest of Skerry retained by her. The money which was paid over to Moulton upon said judgment he, as administrator of the estate, holds as general assets thereof, subject to the decree of distribution to be made by the probate court. It is evident that, if the plaintiffs are entitled to any relief, it is not to be sought in that court.
It was conceded at the argument that it sufficiently appeared by the bill that no order of distribution or of partial distribution had ever been made. The heirs received the property distributed to them by Skerry, have retained the same, and nothing appears in the allegations to show that the distributees interested have not acquiesced in the same, and adopted such acts as advances or payments. This property is not needed for any other purpose, as the bill alleges that all the accounts against the estate as yet unpaid, payment of which can be enforced, amount to a much smaller sum than that paid in by the plaintiffs upon the judgment of all the above-named accounts. After these are paid, the plaintiffs ask to be subrogated to the rights of the distributees, to the extent that the latter have received advances and payments, claiming that the money, to the extent named, has been paid in for the benefit of the heirs, and, if distributed to them, they will receive double the portion which they would otherwise have received from the estate. If these plaintiffs, by a judgment recovered against them in an action at law, have been compelled, by breach thereof, to pay to the administrator of this estate an amount of money which will double its assets, and thus enable the heirs to receive twice as much as was their original share from the estate, it is needless to say that justice requires that they should find relief.
In the case of Kinney v. Ensign, 18 Pick. 232-236, Chief Justice SHAW says:
“The holding the fact of a debtor taking administration upon the estate of his creditor to be a payment may be deemed a legal fiction, adopted for purposes of justice and convenience, as well as from considerations of policy, and calculated generally to promote justice; but such a legal fiction will never be allowed to go so far as to work wrong and injustice.”
It has been held by this court, in an action against a surety upon the official bond of a receiver of an insolvent insurance company, that the fact that the receiver rendered, as such, valuable services for which he became and was entitled to compensation, the amount of which had not been determined, is not competent evidence to reduce the amount of the surety's liability; but if anything...
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