Pinkerton v. Sargent

Wells, J. Under the statutes of Massachusetts, the arrears of a bequest, like that for the support of Mrs. Sargent, may be recovered in an action at law. Farwell v. Jacobs, 4 Mass. 634. Swasey v. Little, 7 Pick. 296. Crocker v. Crocker, 11 Pick. 252. A demand is not necessary to the vesting of the right, but only to the maintenance of an action against the executor which is based upon default or breach of duty by him,. The right is not lost, therefore, by the death of Mrs. Sargent without having made such demand. The plaintiff, as her administrator, is the person entitled, after her decease, to claim and receive whatever was due to her under the bequest; and the demand made by him, before bringing the suit, was sufficient for the purpose. Miles v. Boyden, 3 Pick. 213. Swasey v. Little, supra. It is immaterial whether the expenses for the support of Mrs. Sargent remain unpaid as a debt against her estate, or have been met by other resources belonging to her, or advanced by her friends. The bequest is not satisfied and the estate in the hands of the defendant discharged by the fact that she has received the support from others; Crocker v. Crocker, 11 Pick. 252; even if there was no neglect or delay on the part of the defendant which rendered it necessary that other provision should be made. The report does not state whether there was such neglect or not. The plaintiff was properly appointed as guardian of Mrs. Sargent, soon after the death of the testator. His expenditures for her support are chargeable to her estate, and may be recovered, as well as the bills remaining unpaid, as a part of the amount due to her under the bequest. It is recoverable because it is due to her, and not because the plaintiff has paid it. As her representative, he is entitled to recover the reasonable amount required for her support during her life, together with incidental expenses. These would include the necessary expenses of guardianship, and reasonable charges for personal oversight of the ward and care for her support. But the account of the guardian settled in the Probate Court would not be competent to determine the amount; because it was [114] not settled with reference to the question of support, and especially because the defendant was no party to that proceeding, and had no notice or opportunity to be heard. The expenses and charges for prosecuting claims and suits adverse to the will, or asserting rights inconsistent with it, cannot be recovered in this action. They are not for the support of the legatee, within tire intent of the testator. It is objected that the defendant is not in default as executor, because there is no direction in the will for payment of this bequest by the executor, but it is attached as a charge upon the residuary estate devised and bequeathed to Horace B. Sargent in trust to pay for this support; and that he is not in default as trustee because he has not given bonds nor received the estate as trustee, upon settlement of an account as executor; that the remedy, if any, is in the Probate Court, by requiring him to qualify as trustee and settle his account as executor. We do not think these objections ought to prevail. There is no pretence of a deficiency of assets, or that the residuary bequest is not of a substantial present estate. The report does not indicate whether the executor’s account has been rendered, or the estate settled, or the residue taken by the defendant in his own right. But as the executor was appointed in 1867, and is himself the residuary legatee and devisee, we may fairly presume that he is in the receipt and enjoyment of the estate. It is so alleged in the declaration, and not denied in the answer. The defendant, then, is directly chargeable in an action at law for the legacy, on the ground of the trust attached to the residuary devise to himsell Swasey v. Little, 7 Pick. 296. Sheldon v. Purple, 15 Pick. 528. Bowker v. Bowker, 9 Cush. 519. Adams v. Adams, 14 Allen, 65. It was indeed he) I in Henry v. Barrett, 6 Allen, 500, that an action could not be maintained against the executor, where there was no direction for pa yment by him, and he was not the devisee nor in possession of th, property upon which the bequest was charged; but that it must be brought against those to whom the property came that was sc "barged with the payment. In the discussion, it was not denie' that the action might have been [115] maintained if the executor had been devisee of the property upon which the legacy was charged; although doubt is expressed whether a third person, acting as administrator de bonis non with the will annexed, could properly be so held, as had been decided in Baker v. Dodge, 2 Pick. 619. But it is to be observed that in Baker v. Dodge the defendant was in possession of the property out of which the payment was to be made; and, if he could not be held, the bequest charged upon it might be practically unavailing, because the residuary devisee would not be liable until he should come into possession, and the settlement of the estate might be delayed indefinitely. The case of Bowker v. Bowker, 9 Cush. 519, appears to have been a suit maintained against the defendant as executor, although there was no direction in the will that the executor should pay the annuity. In the present case, the defendant is liable in one capacity or the other. As it does not appear that he has closed his account as executor, we think the action may be maintained against him in that capacity. The report states the action to be against the defendant as executor., Upon recurring, however, to the writ and declaration, we are inclined to regard it as more properly against him personally, and founded upon his liability as devisee of the property charged with the support of Mrs. Sargent. But this is a matter of form merely, not relied on in the answer, and not affecting the substantial rights of the parties. The question submitted to us by the report is that of the plaintiff’s right “ to recover the whole or any part of his claim,” and not any technical question of pleading. The case will accordingly go to an assessor to ascertain and report for what sum the judgment shall be entered for the plaintiff.