O'Dee v. McCrate

The opinion of the Court was read at the following September term, as drawn up by Mellen C. J. The .original complaint made to the Judge of Probate, upon which the decree appealed from was passed, is founded on the 24th Section of Stat. 1821, ch. 51. The first paragraph of it is im these words: — “ That each Judge of Probate, within his county, be, and hereby is authorized and empowered to call before him and to examine upon oath any person suspected by any executor or administrator, heir, creditor, legatee or other person having lawful right or claim to the estate of any person deceased, of having concealed, embezzled or conveyed away, any of the money, goods or chattels left by the testator or intestate.” The residue of the section provides that, on his refusal to be examined and answer interrogatories, the Judge of Probate is empowered to commit him to prison, there to remain until he shall consent to be examined and [471] answer interrogatories, or be duly discharged. The first question is as to the construction of the above clause. In the case of the Selectmen of Boston v. Boylston, 4 Mass. 318, Sewall J. in delivering the opinion the court observed, that it was at least questionable whether an executor or administrator could, under any circumstances, be liable to an examination pursuant to the provision of the statute ; but if he were, that it was clear the authority of the court extended, under it, only to an examination for the purpose of discovery ; that no other power was given by the statute j and, that in that extent, it was analogous to the power exercised by the court ol chancery in England upon a bill for discovery. We presume nothing further than a discovery of facts is anticipated, as the legal result of the present proceeding ; and the coercive power exercised for the purpose of obtaining such a discovery by the court of chancery, is all which the complainant prays for in the present application- The 23d section of the abovementioned act declares, “ that the several Judges of Probate, be, and hereby are empowered to convene before them any person that has been or hereafter may be en - trusted by any executor or administrator with any part of the estate of the testator or intestate, who shall refuse, upon a citation issued by the Judge of Probate for that purpose, to appear before him and render a full account upon oath of any money, goods or chattels, and of any bonds, accounts or other papers belonging to the estate of the testator or intestate, which he shall have taken into his hands or custody, and of his proceeding for and in behalf of such executor or administrator in his capacity as suchand on his refusal to ren - der such account, he may bo committed to prison as mentioned in the 24th section. Taking both the foregoing provisions into consideration, we do not perceive any substantial objection to the exercise of the power given in the 24th section in the present case. The section says, “ any person” suspected, he. by any executor, administrator, heir, creditor, legatee, &c. By the 23d section an executor or administrator may complain against any person entrusted with any property, &e. and, by the 24-th section, against any person suspected by an executor or administrator of having concealed, embezzled or carried away any property, he, And as the person so [472] suspected has no right to intermeddle with or hold possession of any of the personal estate of the deceased, without permission, the executor or administrator is the proper person to complain and institute proceedings against such intermeddler; but if an executor or administrator is suspected by an heir, creditor or legatee of having concealed any part of the personal estate of the decased, why should not the statute provision be applicable to such a case ? It is within the language of the section, and we apprehend also within the spirit and meaning of it. For though an executor or administrator has a legal right to the possession of the personal estate, it is for the purpose of lawfully administering it for the benefit of all concerned $ but not for the purpose of concealing it from their knowledge and clandestinely appropriating it to his own use, in violation of his duty. Hence the propriety of holding him liable to answer on oath as to his possession or disposition of property suspected and alleged to have been concealed by him. Such an appeal to his conscience often being the only proof which can be obtained of such concealment and unlawful appropriation. We think the present case within the statute in this view of it, if McCrate is an executor of the will of O’Dee, or an administrator on his éstate. In Higbee v. Bacon, 7 Pick. 14, the court entertained no doubt that an executor or administrator is liable to an examination on oath, upon complaint of those interested. And though in that case the complaint was not founded on the foregoing statute, but the object of it was to compel the administrator to account for a certain obligation on which he was bound to pay a sum of money to the intestate, they reversed the decree of the Judge of Probate, and commanded him to proceed upon the complaint, and in the examination of the subject matter of it, according to law. It appears in 8 Pick. 484, that the same parties were again before the court on a second appeal. The Chief Justice says, “it should be recollected that an administrator is a trustee, accepting the trust voluntarily, and so having no right to complain of the liabilities of the trust.” The same principle is equally applicable to an executor. An honest man, whether an executor, administrator or a private individual, has no [473] occasion to avoid or to fear such an examination. He is merely called upon to state the truth under oath. In tho case before us the complainant alleges in her complaint, that she is the only child and heir at law of John O’Dee ; and she has made oath to the truth of the statement. She does not make tho charge against McCrate in any particular capacity, but according to the provision of the statute, she, as heir, has a right to the benefits which the answers to the proposed interrogatories may afford her, in obtaining redress for the alleged injuries of which she complains. The age of the transactions to which the interrogatories have reference, furnishes no ground to McCrate for refusing to answer, and in his answer to state such facts as are within his knowledge and recollection. We do not perceive any thing irrelevant or improper in most of the proposed interrogatories, nor any legal ground for a refusal to answer them. Accordingly the decree of the Judge of Probate, appealed from, is hereby reversed ; and he is hereby commanded to proceed upon the complaint, and in the examination of the said Thomas McCrate, touching the estate of the deceased O’Dee, as expressed in the first, second, third, fourth, fifth, tenth, eleventh and twelfth interrogatories aforesaid only ; but may examine the said McCrate as to his knowledge of the existence of the paper mentioned in tho seventh interrogatory, and of its present situation, and in whose possession it is and as to its contents ; hut not as to its execution by said McCrate. All which said Judge of Probate will proceed to do, according to law, after proof has been adduced to the satisfaction of said Judge that the complainant is the daughter and heir at lav of said O’Dee. And the cause is remitted to the Probate Court for the above purposes.