Fay v. Taylor

Shaw, C. J. By the general rule of law, if a legatee dies in the lifetime of the testator, the legacy lapses : but in this com' [158] monwealth, this rule is reversed by statute, when the legatee dies leaving issue who survive him; such issue take the legacy. Rev. Sts. c. 62, § 24. These minors are therefore entitled to this legacy, in the same manner as if given directly to them- ' .elves. This legacy having been assented to by the administrator, tnd he having, by his first account, not only admitted its validity, but admitted that he had funds in his hands, and claimed an allowance for money reserved for its payment, it became his duty as administrator to pay it; and a neglect and refusal to pay it on special demand, made by one 'duly authorized, may be assigned as a breach of the condition of the bond to administer the estate according to the will. There being a breach of the bond, a suit in the name of the judge of probate will lie. It is not however one of the cases where a suit may be brought by one interested, without authority from the judge of probate, as it may be by a general creditor after judgment, or a creditor whose claim has been established under a commission of insolvency, or a distributee after a definitive decree of distribution; but it is one of the cases in which the judge of probate may, on application, authorize any creditor, next of kin, legatee or other person aggrieved, to bring an action on the bond. Rev. Sts. c. 70, §§ 3-6. Newcomb v. Williams, 9 Met. 525. Such an application having been made to the judge of probate, and an order obtained for authority to sue the bond, the action is rightly brought. The obligation of the bond being to administer the estate according to the will, and the will directing the payment of this legacy by the administrator, if he had assets, it was his duty to pay it, and a failure of duty not to pay it. His first account admits that he knew of this legacy of $600, besides one of like amount to himself, and that he then had funds sufficient to pay them. And then, after praying to be allowed for expenses and debts, he adds, “ retaining $1,200 to pay legacies,” of which, it is agreed, the legacy to these minors was one. Perhaps it was irregular to treat the sum thus retained as an absolute credit, for the very expression implied that he had not paid it, [159] and that of course he still owed it, and owed it in his capacity of administrator. The purpose could only have been, to show what amount he had in his hands, applicable to the payment of other debts and charges, after reserving enough to pay these two legacies. The allowance of an account thus framed could be no discharge of the legacies ; on the contrary, it was an admission that he held and had appropriated the fund for discharging them. But it is insisted that, in his second account, he charged these legacies as paid, and that this account was allowed by consent of these minors. But we think that this is not so. In this second account, the administrator charges himself with the amount as stated in the first account, and then with the contributions of the four heirs, including himself, to make up the balance stated, in his petition for leave to sell, to be in arrear. The contributions were credited as money paid to save the real estate from being sold. He then prays to be allowed “ for sundry payments made, as stated in last account,” and then carries out a sum, including all the debts, legacies and charges. When therefore these minors, by their guardian, assented to this account, and prayed that it might be allowed, they assented to it as stated, and such statement referred directly to the first account, which mentioned these legacies, not as paid, but as legacies for the payment of which he had retained funds. They are not estopped therefore from showing the truth, that they were not in fact made. Then the question arises, whether the sums, contributed by the devisees to avoid the sale of the real estate, were assets in the hands of the administrator, for which he was liable officially to account, and for which, if not accounted for, the sureties may be liable on this bond. Perhaps this question does not necessarily arise, because nearly the whole amount thus contributed was due to the administrator for his own legacy, and one quarter part of it was due from himself, as one of the residuary devisees, making the contribution of the other three less than the legacy coming to these minors. But without laying down any general rule, the court are of opinion that [160] where there is sufficient real estate, liable to be sold by license of the judge of probate, to pay all debts, legacies and charges, the proceeds of which, when sold, would be assets, and the owners of the estate, to prevent the sale, offer to pay the amount in money, to pay which it is proposed to be sold, and such offer is accepted and the money paid,' especially with Ihe approbation of the judge of probate, the amount thus received is assets of the estate, to be accounted for and paid as assets. In the present case, it was so received by the administrator, and entered in his account as assets. Some of the grounds of this opinion are these: 1. The money thus received is, in a certain sense, the proceeds of the estate, liable for the charges, and convertible into money, as if sold by-license, and then it would certainly be assets. The case of rents is analogous, where, though the heirs might enter and take them, yet, if taken by executors, they must be accounted for as assets. Stearns v. Stearns, 1 Pick. 157. It is true that the money contributed was never the money of the testator ; but it was paid to redeem property, which had been the property of the testator, bound by law for the payment of debts and legacies. It is like money paid to redeem a mortgage. Such an arrangement does not increase the responsibility of sureties. 2. It is within the equity, if not by fair construction within the principle of the statute, requiring all parties interested to have notice, authorizing them to give bonds to the executor or administrator, to be approved by the court, conditioned to pay all the debts mentioned in the petition. Rev. Sts. c. 71, §§ 8, 9. Section 8 provides that no such license shall be granted, until notice be given to the parties interested, that they may. appear and show cause why the same should not be granted. Do they not show sufficient cause why a sale shall not be made, if they furnish funds, and thereby remove the only ground on which such sale is alleged to be necessary 1 Such was the opinion of the judge of probate; and, upon the ground that the payment of the money by the parties interested in the estate superseded the necessity of a sale, he dismissed the administrator’s petition. [161] and subsequently passed Ms account, in wMch the sums thus paid were credited as assets. Upon all the facts, as stated in the report, the court are of opinion that the action is maintainable, and that judgment be rendered for $10,000, the amount of the penalty, and execution awarded in the name of the judge of probate, for a sum equal to the legacy and interest. See Newcomb v. Williams, 9 Met. 525.