Holmes v. Bridgman

Aldis, J. The plaintiff as a creditor of the estate of Elizabeth Wooley filed his petition in the probate court, setting forth that the defendant had neglected to file any inventory of the property of the estate and to render any account of his administration, and praying the court to cite him in to render his account, and that he be ordered to pay the debts against the estate including the claims of the plaintiff. This proceeding was according to the statute. GS-. S. chap. 54 §10 ef seq. The defendant appeared and rendered his account stating that no estate of the said Elizabeth ever came to his hands, and that he had made diligent search and inquiry for the same. Upon this — 35 — Account or statement a hearing was had, the petitioner producing witnesses to show that the administrator had not used due diligence but had been guilty of fraud in the execution of the duties of his office. The probate court decided that the administrator had been guilty of bad faith and wanting in due diligence, and held him chargeable for the property which he would have received as administrator by the exercise of reasonable diligence and good faith, and ordered him to be charged with the sum of $647. lost to the estate by his bad faith, and that he pay to the petitioner on demand his claims against the estate, and that nothing be allowed the administrator for his services, they having been rendered in bad faith. From this decree and order of the probate court the administrator appealed to the county court. The county court appointed a commissioner to report the facts, and upon his report the hearing is now had. It appears from the report that Samuel Wooley Sen., the husband of Elizabeth Wooley, died in March, 1849, seized of a farm of the value of $2,700. and of good notes of - the value of $550. To this result the litigation has come both before the probate court and the commissioner. It is admitted that he owned the real estate. As to the $550. in notesj the widow and heir of Samuel Wooley Jr. claim that Samuel Sen. gave them before he died to his son Samuel Jr. If he did so give them, then Elizabeth would not be entitled to her distributive share of them; — if he did not so give them she was entitled to her share of them, which could not have been less than one-third of therm If the widow and heir of Samuel Jr. wrongfully claimed and withheld them from the widow Elizabeth, she in her lifetime, and her administrator after her death and on behalf of her creditors was entitled to such share. The proof of such a gift would devolve on those who claimed title under it, (Anna the widow of Samuel Jr. and Franklin his son and heir;) and the commissioner says he does not find such gift established by any fair preponderance of proof. This result thus arrived at both in the probate and county courts we must regard as a fact which would have been established always in any just and reasonable litigation, as well by Dwinell, the administrator of Samuel Sen,, by Bridgman, the administrator of Elizabeth, as by this plaintiff; and that the claim of the widow and heir was wrongful and untenable. — 36 — 1. As to the claim as to the dower of Elizabeth Wooley in her husband’s farm. It is conceded that she had the right to dower. Until assignment of dower she was entitled to one-third of the rents and profits of the farm ; after assignment of dower, to the use of the whole assigned to her. While her son Samuel Jr. lived — viz. from March, 1849, to March, 1852, — he supported her reasonably, and it is admitted by the plaintiff that such support should offset the value of the use of the dower for the same time. From March to November, 1852, the widow and son of Samuel Wooley Jr. supported her, and for that time we see no reason why the use of her dower should not be set off against her support. After that she was supported by her guardian (the present plaintiff,) from November, 1852, to July, 1853, and his account against her estate appears to have accrued in part for- such support; — and up to the time of her death in December, 1854, the plaintiff appears to have been endeavoring to obtain an assignment of dower for her and by suit against Anna and Franklin Wooley, (the widow and heir of Samuel Jr.,) to reach its proceeds. After the appointment of the plaintiff as guardian it is obvious that the use and possession of the real estate of his ward would belong to him — and that the lease of it previously by the administrator of Samuel Wooley Sen., or afterwards by the town of Grafton, would not impair his right to it. As Anna and Franklin Wooley in fact took the whole use of it to themselves without the assent and against the will of the guardian, they would be liable to him for the value of its proceeds thus wrongfully taken. They knew that the land was set off to the widow as dower at the time of the assignment. Either in the action of trespass or in some other form they were'accountable to the guardian for the proceeds of the use of the dower which they had taken. The defendant Bridgman, who was administrator of Elizabeth, must have been fully aware of this. The guardian, after his powers ceased by the death of the widow, urged the defendant to pursue the matter and obtain pay for this wrongful use of her land by Anna and Franklin Wooley. He promised to investigate. The commissioner finds he would have proceeded to obtain redress for the estate he represented, if Anna and Franklin Wooley, the wrongdoers, — 37 — whose interest it was to have him do nothing, so that they could retain the widow’s funds in their hands, had not given him a bond to indemnify him against all acts or omissions to act as administrator. This bond we can regard only as an instrument to procure him not to do the duty reposed in him by his office. It was collusion in their wrongdoing for him to accept it and act upon it. If he did not act, nobody could. The obligors in the bond thereby secured themselves from legal prosecution and got for their own use what really belonged to the estate of the widow, and should have gone to the payment of her creditors. In this view we do not deem it material to decide whether the assignment of dower would relate back to the time when the commissioner set it out and the guardian made entry, so as to enable him to sustain his first suit in trespass — though we incline to that opinion ; for the defendant wholly refused to do anything — to take any measures to secure to the widow’s estate what belonged to it. The commissioner says, after taking the bond he ceased to do any act as administrator. He allowed Anna and Franklin to grasp the whole without any respect for the rights of others who had claims on the estate. He did this because they gave him a bond, that if he would do nothing, and so help them keep what they had got, they would stand between him and harm. This conduct of the defendant was very far from being fidelity to his trust — it was collusion with wrongdoers in spoiling the estate he was bound to protect. Had he done his duty he would have collected from Anna and Franklin the value of the use of the dower from November, 1852, to December, 1854. Her right to the value of the use of her thirds in her husband’s real estate did not depend upon the assignment of dower by metes and bounds. Nor couldher husband’s administrator, heirs or creditors deprive her of that. And after the appointment of her guardian all her rights vested in him, and those who took the proceeds were accountable to him. The annual value of the dower according to the commissioner was $65. By this estimate the administrator of Elizabeth "Wooley could have collected of Anna and Franklin something over $130.00.; or if the estimate be measured by the damages in the trespass suits, then at least $112. 2. As to the personal property. — 38 — The commissioner reports that the $550. in notes belonged to Samuel Sen. when he died, and as we have already said, this result must have been arrived at if any reasonable litigation had been attempted. The administrator of Samuel Sen. by the use of due diligence could have ascertained the facts and secured this property for the estate. For his neglect to do so two reasons are assigned. Fwst, that he honestly but erroneously believed that these notes had been given to the son. If the facts reported by the commissioner satisfied us that he honestly and thoroughly, and without favor to Anna and Franklin Wooley, investigated the matter, and so had arrived at that conclusion, we should not think he ought to have been held liable for the loss of them. But there are other facts which raise a strong presumption against him, and lead us to a different conclusion, viz : that he was at least wanting in due diligence. He was appointed administrator at the suggestion of the widow and heir of Samuel Jr. He could as well have investigated the matter and ascertained the facts as this plaintiff. He was urged to do so, and as events have since shown, would have succeeded if he had tried. .He seems to have relied upon the declarations of Anna and Franklin, whose statements were less to be relied on as they were interested parties. We cannot resist the impression from the facts stated in the report that he allowed himself to be influenced by them to do nothing, which was all they wanted, when his duty required that he should be independent and diligent in pursuing them and reclaiming what they had wrongfully got. The second excuse offered for him is that he had no funds to enter upon an expensive litigation. But he had the farm worth $2700., and the proceeds of two-thirds of it. Instead of keeping this in his own hands he leased it to the widow Anna and her son Franklin and seems never to have asked for any rent. This looks much more like managing to aid them in their claims, than endeavoring to bring them to the test of a legal investigation. An investigation in the probate court would not have been attended with an unreasonable expense,— at least would seem to have been fully justifiable as a duty to the estate he represented, The farm furnished him with ample security for all his expenses. When Dwinell, as administrator of Samuel Wooley Sen., offered — 39 — his account for allowance, the plaintiff objected to the allowance, because he did not account for this sum of $550. Had that investigation been then allowed to proceed, we cannot doubt it would have resulted in charging him with these notes. But here again the investigation was prevented by the act of this defendant. He took a bond in collusion with those who wrongfully held the fund to stifle investigation. Thus from first to last we find a persistent effort to avoid a legal trial. Against those thus unfaithful to their trust, and who thus collude to stifle all legal investigation of unjust claims, every presumption is to be made. We think the defendant should be made chargeable with the third of the $550. of notes which belonged to Samuel Sen. at his decease. This sum, with interest from March, 1849, belongs to the estate of the said Elizabeth, and at the time of the allowance of the plaintiff’s account (September 10th, 1855) was more than enough to pay it. The amount chargeable to the defendant for the use of the dower would be more than the other claims of the plaintiff; — it would be (calling the period two years during which Franklin and Anna had what they should have accounted for to the guardian) the sum of $130. with interest from December, 1854. The plaintiff paid on the 22d of April, 1857, $34.90. on the executions in the trespass suits, and on the 10th of July, 1857, $26.38., the costs in the appeal case. These claims of the plaintiff with interest amount to less than the rents and profits of the dower for which we hold the defendant chargeable. We think the decree of the probate court charging the defendant with an amount equal to the claims of the plaintiff, as above stated, was correct and should be affirmed. The pro forma judgment of the county court is reversed and judgment rendered that the defendant is chargeable with loss to the estate of Elizabeth Wooley, deceased, arising from his want of due diligence and his fraud, for a sum equal to the account of the plaintiff allowed against said estate, (being $252.28. with interest from September 10th, 1855,) and the sums paid by the plaintiff on the executions in the trespass suits, (being $34.90. and interest from April 22d, 1857,) and the sum paid for costs in the appeal case, (being $26.38. with interest from July 10th, 1857,) — and that the decree of the probate court ordering the defendant Bridgman to pay the above amounts to the plaintiff be affirmed — 40 — with costs. As Bridgman has deceased since this suit has been pending, and Joel Davis has entered as administrator of his estate, he will be ordered to pay the same to the plaintiff out of the estate of said Bridgman. This judgment is to. be certified back to the probate court, pursuant to the statute.