Lawton v. National Surety Co.

Pierce, J. These are two actions of contract wherein the plaintiff seeks to recover against the sureties on three probate bonds given by the executors of the will of Joseph Middleby, deceased, to the judge of probate for the county of Middlesex. By permission of the judge of probate these actions are brought for the benefit of Robert M. Bowen, the administrator de bonis non of the estate in Massachusetts, appointed after the death of the executors. The will is dated May 18, 1911. In these actions the breaches relied upon are the failure of Gherst and McCarthy to comply with the decrees of the Orphans’ Court of November 7, 1914, and October 30,1915. The trial judge found for the defendant in each action and the cases are before this court upon the plaintiff’s exceptions to the judge’s rulings and refusals to rule as requested. The finding for the defendants was right. The title and right of possession in the Pennsylvania assets vested exclusively in the ancillary executors upon their appointment; and the domiciliary executors had no right in or to such assets, even though the same individuals held the offices of domiciliary and ancillary executors. Low v. Bartlett, 8 Allen, 259, 263. Emery v. Batchelder, 132 Mass. 452, 455. Cowden v. Jacobson, 165 Mass. 240, 243-4. A domiciliary administrator as such is not liable upon his [446] local bond for his conduct as ancillary administrator abroad. Hooker v. Olmstead, 6 Pick. 480. Low v. Bartlett, supra. Cowden v. Jacobson, supra. Harvey v. Richards, 1 Mason, 381. The ancillary executors were in no sense the agents of the domiciliary executors and their authority was independent and exclusive within the jurisdiction of their appointment. Gray v. Lenox, 215 Mass. 598. The domiciliary executors had no right and consequently were under no legal obligation to demand that the fund created by the surcharged account after the payment of local creditors, should be turned over to them for distribution in Massachusetts, until the Pennsylvania courts by a final decree should order its executors to pay over such fund to the Massachusetts executors. Gray v. Lenox, supra. Dent’s Appeal, 22 Penn. St. 514. Mansfield v. McFarland, 202 Penn. St. 173. Sayre’s Executors v. Halme’s Executors, 61 Penn. St. 299. Normand’s Adm’r v. Grognard, 2 C. E. Green, 425. The decrees of June 27, July 7, and November 7, 1914, whereby as a surcharge to their account the ancillary executors were ordered to pay $49,678.66 to M. A. Gherst and Jere J. McCarthy, executors, subject to the direction of the Massachusetts courts, was an order nisi, based upon the assumption that Gherst was solvent .and could collect that sum in whole or in part from Gherst and McCarthy as individuals. That the order was thus conditional is manifest and clear from the statement in the decree of November 7, 1914, in reply to the suggestion that the estate would be insolvent if the surcharge could not be collected, that “ It is, however, only fair to the accountant to say that the distribution ordered should not be carried out unless it can be carried out fully and completely. If, for any reason, it is impossible to do so, the accountant should hold the fund subject to the further order of the court, made in pursuance of the proceedings outlined in Sec. 85, Rules of Court.” On appeal from this decree the Supreme Court in Pennsylvania recognized that the order for distribution was [447] based upon the theory that the estate was solvent and referred with apparent approval to the limitation of the order in case it should eventuate that the estate was in fact insolvent. The decree of October 30, 1915, upon which the plaintiff relies, was without force unless the fund created by the order for surcharge was collected. No fund was ever created or came to Gherst as the result of the order of October 30, 1915, and consequently no money came to him as domiciliary executor which he or McCarthy could account for in the Massachusetts Probate Court. The cases of Jennison v. Hapgood, 10 Pick. 77, Smith v. Sherman, 4 Cush. 408, Martin v. Gage, 147 Mass. 204, Clark v. Blackington, 110 Mass. 369, Emery v. Batchelder, 132 Mass. 452, and Morrison v. Hass, 229 Mass. 514, relied on by the plaintiff, present no rules of law which are inconsistent with the rulings of the trial judge that misconduct in the Pennsylvania administration constitutes no breach of the Massachusetts bonds; and that as there was never any final decree in Pennsylvania of any surplus to the Massachusetts estate there was never any sum for which the Massachusetts executors as such were accountable. A careful examination of the exceptions taken to the rulings made and refused in the light of the agreed facts, discloses no reversible error. Exceptions overruled.