White v. Weatherbee

• Court: Supreme Judicial Court of Massachusetts
• Writing for the Court: Morton, J.
• Citation: White v. Weatherbee, 126 Mass. 450 (Mass. 1879)
• Decision Date: 17 March 1879
• Parties: George White, Judge of Probate, v. Emily J. Weatherbee, executrix

126 Mass. 450

George White, Judge of Probate, v. Emily J. Weatherbee, executrix

Supreme Court of Massachusetts

March 17, 1879

Norfolk. Contract, brought for the benefit of John Nihen administrator of the estate of William Nihen, against the executrix of the will of Comfort Weatherbee, upon a probate bond executed to the plaintiff by George M. Cook as principal, and William Jordan and Comfort Weatherbee as sureties, and conditioned for the faithful performance of the duties of Cook as administrator of the estate of Joanna Nihen. Among the conditions was one providing that the principal obligor shall "pay any balance remaining in his hands, upon the settlement of his accounts, to such person as said court shall direct." Writ dated December 29, 1876.

At the trial in this court, before Gray, C. J., without a jury, it appeared that Cook and Jordan resided in the county of Suffolk, and this defendant in the county of Norfolk; that Joanna Nihen died intestate, leaving as her next of kin her father, William Nihen, residing in Ireland; that William Nihen, on June 28, 1873, died in Ireland, leaving no assets in this Commonwealth, except his interest in the estate of Joanna; that John Nihen, his eldest son, was appointed in due form, by the Probate Court for the county of Suffolk administrator of his estate; that by a decree of distribution of the estate of Joanna Nihen, passed by the Probate Court for the county of Norfolk on January 28, 1874, and affirmed by this court on October 24, 1876, a balance of $ 886.67 was ordered to be paid forthwith to John Nihen as administrator of William Nihen; that he duly demanded this sum of the defendant, and also of Cook, before bringing this action to recover the same; that a similar action was brought at the same time, upon the same bond, against Cook and Jordan, in which the plaintiff has since recovered judgment upon default. It also appeared by the records of the Probate Court in Norfolk, that, before bringing this action, John Nihen, as administrator of William Nihen, applied to that court for leave to sue this bond, and such leave was granted; and that the decree granting such leave was made orally on September 6, 1876, and was not reduced to writing until February 18 1878.

The defendant contended that, upon these facts, this action could not be maintained: 1st. Because the Probate Court for the county of Suffolk had no jurisdiction to grant administration on the estate of William Nihen. 2d. Because the order giving leave to sue the bond was not made in writing before the action was brought. But it was ruled that neither of these objections was sufficient to defeat this action; and, at the defendant's request, the questions thereby presented were reserved for the determination of the full court; judgment to be rendered for the plaintiff for the sum of $ 911, with interest from February 23, 1878, or for the defendant, as the court should order.

Judgment for the plaintiff.

J. R. Bullard, for the defendant.

J. R. Churchill, for the plaintiff.

Morton, J. Ames & Soule, JJ., absent.

OPINION

Morton, J.

The question whether John Nihen was legally appointed administrator of William Nihen is not open to the defendant in this suit.

One of the conditions of the bond in suit is that the principal obligor shall "pay any balance remaining in his hands upon the settlement of his accounts, to such persons as said court shall direct." It appeared at the trial that the Probate Court passed a decree of distribution of the estate of ...