Probate Court v. May

The opinion of the court was delivered by Veazey, J. We think the master was fully warranted in finding that the omission to affix seals to the bond, was a mistake, a [189] mere oversight. It is true, as the defendant’s counsel argue, that to entitle an instrument to be reformed, the mistake must be admitted or very clearly proved ; in some cases the expression is, by “ the most conclusive evidence,” in others by “ irrefragable evidence.” In this case the defendant Dennis May, who appears to be making the principal defence, does not in his answer expressly deny that the omission was a mistake, but says he was ignorant of such matters, and did not know but the bond was properly signed and sealed. The evidence is conclusive, that he and all others supposed the bond was perfect in all respects as an executor’s bond, until recently, and until after Hibbard, the surety, brought a suit against Gould and Dennis May, the principals, to reimburse himself for having paid by his note the James May legacy, being a period of about sixteen years. “ Sealed with our seals,” is the recital in the bond itself. Taking into account all the facts and circumstances developed and established, the intent of the parties to the bond to make it perfect by sealing, as well as in all other respects, is unmistakable. We think that degree of evidence is made out which the law requires to warrant the finding of a mistake. The question remaining is, shall the bond be held and treated just as it was intended, and supposed to be by all parties in interest ? The defendants insist that it should not, because, as they say, it has served its purpose; because all the duties have been performed, the performance of which it was given to secure. This is assuming too much. So far as now appears, everything has been done in the administration, except the payment of the James May legacy to the trustee appointed to receive it. That has been paid only in this way. Hibbard, the surety upon the bond, supposing the bond was duly sealed, as all others then did, gave his note to the trustee for the amount of that legacy. After he brought the suit against the principals before referred to, the discovery was made that the bond was never sealed. Thereupon this suit was brought by the legatee James, the trustee, and the Probate Court, to secure a reformation of the bond. The executors accepted the trust, understanding that their liability would be just such as would exist under a perfect bond. [190] To make the bond what they understood it was, will be doing them no injustice. Its imperfection has raised doubts, not plainly trivial, in litigation growing out of the administration of the estate. Moreover, this legacy has not reached its ultimate destination. The executors have not yet paid it to anybody. It has only been paid by a surety giving a note to a trustee under a misapprehension of facts. Under these circumstances, we think it clear that the legatee has a right to have such a bond on file as the law prescribes, and the parties intended. The way the account of the property of this estate was kept by Gould, and the treatment of it by him and- the legatee, does not indicate to us any purpose or expectation of altering the relation of the co-executor Dennis May, to the administration, or of relieving him from his liability as an executor. This all grew out of the fact that Gould, as between him and Dennis, had the charge and possession of the property. He therefore individually kept and renders the account of it. It is claimed that the executors are not jointly liable. The will made a joint-and-several appointment of executors. They were jointly appointed by the Probate Court, and accepted the trust, and gave a joint-and-several bond. They thereby assumed a joint as well'as several liability, and such is their legal liability. It is insisted that the Probate Court had no right to order this legacy to be paid to the trustee, and that the executors were misled by the surety giving his note to the trustee, so that they did not take an appeal. The Probate Court, in a regular and proper proceeding, found that they had the amount of this legacy in their hands and ordered it to be paid to the trustee. The propriety of the order cannot be questioned. It was a final order, and could have been appealed from. It is no excuse, when they say now they did not appeal because their surety had paid that which belonged to them to pay. The duty was theirs. It was their default that occasioned the action of the surety. They cannot now be allowed to say that such action misled them. They are bound to obey that order, and the orators are entitled to have the bond in form such that it may be a security for this purpose, and a secu [191] rity for the performance of any duty that now appears or that may hereafter appear to have been neglected by the executors. The defendants demurred to the bill on the ground of an alleged misjoinder of orators. It may not have been necessary for James to join the Probate Court and the trustee as orators; but as the Probate Court was a party to the bond, and was entitled to a good one in form, and as the trustee was interested in behalf of the legatees, and has in fact become a party in the administration of the legacy, we do not think it was improper to join them in this bill. It cannot be said they had no interest. The test as to parties to a bill is not necessity. Marble Co. v. Manufacturing Co. 47 Vt. 480. There is no occasion in this case to settle any rights between the parties. They can as well be settled elsewhere. The result is, that the pro-forma decree of the chancellor in the main cause is reversed, and the cause remanded, with direction to enter a decree for the orators that said bond be held and treated for all purposes the same as though it had been duly sealed. In the cross-cause the decree of the chancellor is affirmed.