McKim v. Bartlett

Morton, J. Upon the facts agreed in this case, there was a breach of the condition of the bond in suit, for which the plaintiff is entitled to recover at least nominal damages. In the case of an insolvent estate, the statute provides that, “ if an executor or administrator neglects to render and settle his accounts in the Probate Court within six months after the return made by the commissioners or the final liquidation of the demands of the creditors, or within such further time as the court shall allow, and [229] thereby delays a decree of distribution, such neglect shall be deemed unfaithful administration; and he may be forthwith removed, and shall be liable in a suit on his bond for all damages occasioned by his default.” Gen. Sts. c. 99, § 26. In this case, the return of the commissioners was made on November 3, 1876. There was no appeal from the decision of the commissioners allowing or disallowing the claims of the creditors, and the neglect of the administrator to render an account on or before May 3,1877, was maladministration and a breach of his bond. The clause in the statute, “or the final liquidation of the demands of the creditors,” was intended to apply to cases where there is an appeal from the decision of the commissioners, and where therefore the amounts due to creditors among whom a dividend is to be made cannot be ascertained until such appeals are determined. It was not intended to postpone the duty of the executor or administrator to render his account until contin - gent claims were finally determined. The return of the commissioners, without any appeal, was “the final liquidation of the demands of the creditors,” within the meaning of the statute; and the fact that one White had presented a contingent claim is not material. The remaining question is as to the amount of the damages the plaintiff is entitled to recover. It is admitted that, on May 28, 1877, the defendants, who signed the bond as sureties, were, by a decree of the Probate Court, discharged from further liability upon the bond in suit, a new bond with other sureties having then been given by the administrator and approved by the court. They thereupon ceased to be liable for any future acts of maladministration of the principal, but they remained liable for all breaches of the condition committed before the new bond was approved. Gen. Sts. c. 101, § 18. The plaintiff contends that they are liable for the full value of the property in the hands of the administrator. His argument is that, at any moment after his default, a suit might have been brought on the bond in which the measure of damages would be, under the Gen. Sts. o. 101, § 28, cl. 4, the value of the property; that this liability existed against the defendants after May 3, and they were not relieved from it by their subsequent discharge from responsibility on the bond. The measure of damages established by that [230] statute for a breach of the bond in not accounting is “ the full value of all the estate of the deceased that has come to the hands of the executor, and for which he shall not satisfactorily account.” Choate v. Arrington, 116 Mass. 552. But if such suit had been brought against the defendants, we do not think that the measure of damages would necessarily have been the value of the property. If it appeared that there had been in fact no defalcation or misappropriation of the property by the administrator, but his only default was a delay in filing his account,-he could, by filing his account and putting the property in his hands at the disposition of the judge of probate, exempt his sureties from any liability except for nominal damages, or for such damages, if any, as were caused by his delay in filing an account. This would seem to be clear if a suit had in fact been brought against the defendants while they remained liable as sureties, and they had caused the administrator to file his account. Do the facts, that a suit was not brought, and that the administrator did not file any account, extend their liability so as to make them responsible for the full value of the property ? It is unjust that the sureties on the first bond should be held liable for misappropriations of the property by the administrator after they have been duly discharged. For such misappropriations the sureties on the second bond are liable. In such case the real damage to the estate is caused by maladministration after the first sureties are discharged, and is not the consequence of the breach for which they are responsible, viz. the delay to file an account. They ought not to be held responsible for a loss to the estate caused by subsequent maladministration, and not by the delay in accounting. The plaintiff relies upon the case of Choate v. Arrington, ubi supra. In that case, there were two bonds, on one of which a surety had been discharged, but the suit was against the sureties on the second bond; and it was held that they were liable for all the estate which the executor ought to account for, whether received by him before or after the new bond was given; but it does not touch the question as to the liability of the surety who had been discharged. In the case at bar, it does not appear that there had been any misappropriation by the administrator before the discharge of the [231] sureties. We are xot quite clear whether we can take it as a fact agreed, that there had not been any such misappropriation, as the statement of facts is in this respect ambiguous. If there had not been any, we are of opinion that the defendants are not liable for the full value of the estate, but only for such damages as were occasioned by the delay in rendering an account. If there had been a previous misappropriation, this was maladministration for which the deferdants would be liable under their bond. Unless the parties agree upon this matter, the case must be referred to an assessor. If the defendants are not liable for any portion of the property received by the administrator, the further question whether they are liable for any other than nominal damages cannot be decided, because the statement of facts does not furnish us with the means of deciding it. If the money in the hands of the administrator was lying idle and unproductive, interest thereon would be a fair measure of the damages; but if the money was invested, earning income or interest, this income or interest would enure to the benefit of the creditors, and the plaintiff would not be entitled to any except nominal damages. This matter can be determined by the assessor. Case to go to an assessor