Clark v. Blackington

Wells, J. The domicil of the testatrix being in this Commonwealth, the final and full settlement of the estate is to be made here. The executor “ must be held to account here for the whole of the personal property and effects which have come to his hands, wherever found, or by whatever means collected.” Jennison v. Hapgood, 10 Pick. 77, 100. If he has a surplus in — 373 — his hands arising out of the administration of the testator’s goods and estate in Rhode Island, after paying the expenses of administration and discharging his own liabilities there, “ he is accountable for it here in the same manner as he would be if another had been appointed administrator, and had paid over a balance.” Ib. The executor in this case, in order to have his account allowed with such credits as to discharge him from further responsibility for the note which came into his hands as executor, must show that he has disposed of it and appropriated the proceeds in a legal and proper manner in the settlement of the estate of the testatrix. As the maker of the note was domiciled in Rhode Island at his decease, and the property, from which alone payment could be enforced, was situated there, it was proper, if not necessary, to take ancillary administration there. The probate courts of that state had full and complete jurisdiction for the sale of the note and the property held as security, and for the allowance of the accounts pertaining to the administration there. Jennison v. Hapgood, 10 Pick. 77. Stevens v. Gaylord, 11 Mass. 256. Assuming, in the first place, the proceedings in Rhode Island to be regular and valid under the laws of that state, and the sale of the note to have been absolute, the executor would be fully protected thereby, and would be answerable here only for the balance of proceeds remaining in his hands. Claims due in Rhode Island, aEowed by the Probate Court there, and paid in good faith out of the assets subject to that jurisdiction, are not open to reinvestigation here. But the adjudication affects only the assets there; and if the claim itself is presented for aEowance _n the courts of this state, the foreign adjudication upon it is not held to be binding. Ela v. Edwards, 13 Allen, 48. In the account before us the executor asks to be aEowed for payment of certain specified claims due from the deceased in Jhode Mand, and for loss on sale of note and mortgage, as charges “ incurred and settled in the Probate Court in Rhode Island.” These claims were disaEowed; and the question presented to us apon the report is not as to the merits of the specific claims, but — 374 — whether the Probate Court in Massachusetts was concluded by the settlement of the account in Rhode Island, Although the separate items of the charges in Rhode Island are brought into the account here, yet we think it appears from the whole statement, and should so be regarded by the court, that the purpose of the accountant was to bring into his account here the net result or balance of the settlement in Rhode Island. From considerations already suggested, it follows that if the proceedings in Rhode Island were regular and valid, the settlement in that state is conclusive to the extent of the assets there received and accounted for. But it will not establish any claim in favor of the executor, as against any assets for which he may properly be held accountable in this state. Ela v. Edwards, 13 Allen, 48. The objection made to the proceedings in Rhode Island is that they were had without due notice to parties interested. The record of the original proceedings, by which a copy of the will was ordered to be filed and recorded, and the appellant received letters of administration in Rhode Island, has the recital, “ Notice having been duly given thereon, pursuant to law.” And the order allowing the account recited as follows : “ All persons interested in the settlement of said account having had legal notice.” Such recitals are not conclusive, it is true," where the jurisdiction of the foreign court depends upon the fact of notice. Carleton v. Bickford, 13 Gray, 591. If the same rule applies where the jurisdiction exists, but the notice is necessary to the regularity and validity of the proceedings by the lex fori, still the burden of impeaching them for that cause must rest upon the party asserting their invalidity. It appears that the order giving leave to dispose of the mortgage note at public auction was made without notice; and that the only evidence of such order consists in a record attested by the executor himself, as clerk of the court granting it. If we adopt the position of the appellee, that for these or either of these reasons the order, under the laws of Rhode Island, is without legal force, yet it does not follow that the sale was without effect. By the general rule of law, an executor has authority, by virtue — 375 — of his office, to transfer notes due to his testator, and the securities held for their payment. Such is the law of Massachusetts; and we are referred to no statute or decision of the courts of Rhode Island to show that it is otherwise there. We think the provisions of statute to which we are referred are directory merely, and that a non-compliance therewith may affect the extent of the accountability of the executor for the property sold or the proceeds of sale, but not the validity of the sale itself, if made in good faith and otherwise unobjectionable. The note, then, having been sold in Rhode Island, and a final account afterwards settled there, upon due notice, all matters brought into that account are adjusted legally and finally. The whole proceeds of the sale of the note, as reported to the court in Rhode Island, have been appropriated to the payment of debts and expenses due and incurred in that state. The decree of the Probate Court, disallowing items 6, 7, 8, 9 and 10 of the account rendered in this state, must therefore be reversed. Those items must stand, not as specific credits for claims adjusted in Massachusetts, but as representing the extent to which the assets, with which the executor has charged himself upon the other side of the account, have been appropriated and disposed of by the foreign tribunal. For the same reason he should have credit, in any event, for so much" of item 11 as may be covered by the assets accounted for in Rhode Island. He should have credit for the whole of item 11, and also item 19, the two making up the whole loss on sale of the note and mortgage, as shown by the difference between the amount of proceeds of sale in Rhode Island, and the sum of the principal and interest of the note, with which he charges himself in his account in this state, unless he is chargeable here on account of that note and mortgage upon some other ground than accountability for the proceeds of the sale. If that sale was an absolute one, his responsibility is at an endj and the settlement of his account in Rhode Island closes the matter. But if, as the appellee contends and offered to prove, the sale of the note and mortgage “ was by collusion and fraud between the appellant and the purchaser, the purchaser acting as agent of the appellant, and transferring the note and mortgage to the — 376 — appellant, by whom they had been held ever since,” then the settlement of his account for the proceeds of such sale, not assented to by the appellee, does not exonerate the appellant from further responsibility. One who, in executing an authority to sell, becomes himself the purchaser, either diréctly or indirectly, may always be treated by the parties in interest as having purchased for their benefit, if they elect so to do within a reasonable time after knowledge of the facts. No principle of law is better settled or more salutary than this. Litchfield v. Cudworth, 15 Pick. 23. Yeackel v. Litchfield, 13 Allen, 417. If the note and mortgage came into the hands of the executor by means of his sale thereof, and he has made any gain therefrom ; or if they are of greater value in his hands than the $750 for which he has accounted in Rhode Island, the appellee is entitled to the benefit thereof, and may require him to account for the same in the fulfilment of his trust as executor. This responsibility is not touched by the settlement of his account in Rhode Island. Whether the questions arising from this ground of liability could be presented and tried in Rhode Island, if the parties interested should not choose to go there to call the administrator to further account; and what would be the effect here of an adjudication made there, ex parte, we need not consider. If the auxiliary administrator and purchaser of the note had been another than the executor, the appellee might have been compelled to seek his redress in the forum of the ancillary administration. But this executor, although not responsible here for what he has done as administrator in Rhode Island by way of administration there under the authority and with the sanction of the proper courts, yet is responsible for all property in his hands to which a trust attaches in favor of the estate of which he is executor, unless he has already accounted for it, or it is within the exclusive jurisdiction of some other tribunal. The forum of original administration is the one in which the final account is to be made. As executor in this state, his trust embraced this note. Its sale in Rhode Island does not discharge him of that trust, because he is himself the purchaser, and the party interested elects to treat — 377 — him. as purchaser in trust. The account in Rhode Island can discharge him only to the extent of the sale and its proceeds returned there. Whether the fact and extent of such further liability is a matter to be tried and determined ultimately here or in Rhode Island, his final account here cannot be allowed, with credits fully discharging him, until that matter has been adjudicated. Upon the presentation of this account here for allowance, the fact of such further liability is necessarily involved, and must be determined before any decree can be reached. We think the extent of that liability also not only may, but must be tried here. If the allegations of the appellee are sustained so far as to establish that the executor himself became the purchaser of the note and mortgage, directly or indirectly, then he should be required to account for all benefit derived or derivable therefrom, over and above $750, and his charges for loss on sale of the same should be reduced accordingly. Oase to stand for hearing.