McIntire v. Linehan

Morton, J. This is an action against the sureties upon a bond given by the late Linus M. Child, Esq., as trustee under the will of one Sarah Baxter to the plaintiff. The defences are, 1st, that the bond did not take effect as a probate bond for want of the written approval thereon of the judge of probate as required by Pub. Sts. c. 143, § 2; 2d, that it is not binding as a common law bond because it was intended as a probate bond and because it was not accepted by the obligee; 3fi, that the beneficiaries named in it are D. Baxter Merriam and Miriam S. Shattuck and it is effective only to the extent to which they are interested in the estate; and 4th, that the assessment of damages is wrong. Exceptions were taken to the admission of certain evidence but they have not been argued and we therefore treat them as waived. There were also demurrers which were overruled, and requests which were refused. But the defences as stated above include, we think, all the matters on which the defendants rely. We do not deem it necessary to consider whether the bond is a good probate bond since we are of opinion that if it is not it is a good bond at common law. It appears that Mr. Child was appointed trustee under the will of said Sarah Baxter in December, 1870, and duly gave bond. Both sureties died and upon a petition by the beneficiaries, the Probate Court in December, 1894, ordered Mr. Child to give a new bond in the sum of $50,000. After the entry of this decree Mr. Child, in accord [266] anee with a suggestion from the court, communicated with counsel for the petitioner, and it could have been found, we think, by the presiding judge that as a result of such communication and shortly after the proceedings the bond in suit was prepared by Mr. Child and filed by him in the Registry of Probate as and for a compliance with the decree. It could also have been found, we think, that this bond was satisfactory to the beneficiaries and was accepted by the obligee. It was indorsed and put with the papers in the case when left by Mr. Child. It was seen there a few weeks after by the counsel for the beneficiaries. There is no evidence that any other bond was ever prepared or offered by Mr. Child as the bond required by the decree. He continued to act thenceforward as trustee without objection from any of the parties interested. It was at the suggestion of the court that Mr. Child communicated with counsel for the beneficiaries in regard to filing a bond in a less sum than that required by the decree. And there was evidence that counsel for the beneficiaries told the court that although the decree required a bond for $50,000 they would be satisfied with a bond for $40,000. These various considerations and the evidence thus referred to were amply sufficient to justify a finding that the bond was furnished by Mr. Child as and for the bond required by the decree and was accepted by the obligee and was satisfactory to the beneficiaries. We assume without deciding that for want of the written approval of the judge of probate the bond is invalid as a statutory bond. But we think that it is valid at common law. Farr v. Rouillard, 172 Mass. 303, 304, 305, and cases cited. There is nothing contrary to law in its provisions. It was voluntarily given upon a sufficient consideration to secure the performance of his official duties by the trustee in accordance with the decree of the court and the statute in such cases made and provided. There is no reason why effect should not be given to it by holding it good at common law. Notwithstanding only two of the beneficiaries are named in it, it is plain that the bond was intended as a security for all beneficially entitled and we see no difficulty in so regarding it. Farr v. Rouillard, ubi supra. The defendants contend that the question whether the bond was accepted by the obligee is concluded by the finding of the [267] Probate Court at the hearing on the petition for leave to sue, that the bond did not appear to have been presented to either judge of that court for his examination or approval. But the judgment on that petition settled nothing except that the petitioner might bring suit on the bond. Fuller v. Cushman, 170 Mass. 286. Richardson v. Oakman, 15 Gray, 57. In regard to the assessment of damages the defendants contend that there is no evidence to show that certain items and investments for which the trustee was held accountable were received or made by him after the execution of the bond in suit. But it is settled that sureties are liable for any default on the part of their principal in not accounting for amounts received before as well as after the execution of the bond signed by them. Choate v. Arrington, 116 Mass. 552. Dawes v. Edes, 18 Mass. 177. Judgment on the finding. Execution to issue as ordered.