McCoole v. Mackintosh

Pugg, C.J. These are three writs of scire facias, each brought to obtain an execution on a judgment entered on May 6, 1929, on the bond of the defendant as a former trustee under the will of Sarah B. Ackerman. That judgment was entered for $10,000, which was the penal sum of the bond. McCoole v. Mackintosh, 267 Mass. 86. The [495] damage done to the trust estate by the maladministration of the defendant was settled by that decision. The pleadings in each of the present cases consist of the scire facias, the defendant’s motion to dismiss, demurrer and answer. In each case the motion to dismiss was denied and the demurrer overruled. The cases were submitted on agreed facts. Numerous requests for rulings were made. Findings were made in favor of the plaintiff in each case. The cases were combined in one report to this court for the determination of the correctness of the rulings and findings made by the trial judge. Most of the questions raised on the present record were decided adversely to the contentions of the defendant by McCoole v. Mackintosh, 288 Mass. 115. That case related to the same estate, the same bond of the defendant and the same judgment against the defendant as do the present cases. It is enough to refer to that adjudication as decisive against the defendant in the present cases as to most matters here argued. The present writs are brought for the benefit of beneficiaries under the Ackerman will other than the two in the cases already cited. Those writs were brought directly by beneficiaries. The present writs are brought by the trustee under the Ackerman will for the other persons entitled to share in the benefit of the judgment entered on the bond of the defendant. He is plainly a “person interested in the estate” and entitled to bring these writs under G. L. (Ter. Ed.) c. 205, § 34. One of the present writs was brought in the name of the plaintiff for the benefit of Elizabeth C. Sanger representing herself to be entitled to execution on the judgment against the defendant for a specified sum for her own benefit. That writ was brought subsequently to leave granted by the Probate Court. Thereafter, upon hearing, a finding was made in favor of the defendant. After that finding and after leave granted to Donald B. Hughes by the Probate Court, an amendment was allowed to this writ of scire facias by striking out the name Elizabeth C. Sanger, wherever it appeared as the person for whose use execution [496] was sought in the writ, and substituting therefor: “for the use of Donald B. Hughes, as he is the surviving trustee under the will of Sarah B. Ackerman for the benefit of the heirs-at-law of William A. Sanger.” The defendant saved an exception to the allowance of this amendment. He also filed a separate bill of exceptions covering this subject. There was no error of law in the allowance of this amendment. That point need not be elaborated. It is within the sweep of numerous decisions. Shapiro v. McCarthy, 279 Mass. 425. Johnson v. Carroll, 272 Mass. 134. Pizer v. Hunt, 253 Mass. 321. Ames v. Beal, 284 Mass. 56, 62. Hopkinton v. B. F. Sturtevant Co. 285 Mass. 272, 276. Every other question presented on the record is concluded against the defendant by McCoole v. Mackintosh, 288 Mass. 115. The result is that there was no error of law in the rulings and findings of the trial judge. The exceptions are overruled. In each case the findings are to stand, and execution is to issue as directed. So ordered.