Butler v. Sisson

Pardee, J. The petitioners seek the aid of a court of equity to compel the transfer to the Security Company, administrator with the will annexed of the estate of Jonathan Butler, of certain insurance stocks which stood in the name of Nathan Butler at his death, in which they claim [588] that the latter had only a life interest, making them now. the assets of the former estate and held by Sisson, the administrator of the Nathan Butler estate, without authority or only as holder of the bare legal title in trust for the administrator of the Jonathan Butler estate. The respondent, without meeting the question whether the stocks were so held by Nathan Butler, demurs to the bill on the ground that it can not be sustained by the petitioners, but that a suit can be brought only by the Security Company. The petitioners are a part of the legatees under the will of Jonathan Butler, who will receive under it the stocks in question if they are a part of the assets of his estate, and have therefore an interest in establishing the title of that estate to them and in securing a transfer of them to the Security Company as administrator of that estate. It is very clear that, if the Jonathan Butler estate is entitled to the stocks, it is not only in the power of the Security Company as administrator to bring a proper action at law for their recovery, but is its duty to do so. This duty the law enforces by sundry remedies of which parties interested in the estate may avail themselves; while it presumes that an administrator will do his duty and gather in all the assets that he is able. He ordinarily has no interest to the contrary. Where he neglects his duty in this or any other particular he makes himself liable on his bond; he may be removed by the court of probate on the application of any person interested; if he finally neglects to account for all the assets of the estate, the aggrieved heir or legatee may object to the allowance of his administration account in that court, and an appeal lies, in case of an adverse decision, to the Superior Court. The law has intended to furnish all parties interested ample security against every neglect or maladministration on the part of executors, administrators and testamentary trustees, in the probate court or by suits on the bonds filed in that court. Why then should the petitioners come into a court of equity for the protection of their interests ? There is no reason that exists in this case that does not [589] in every other where an executor or administrator refuses to bring a suit which the heirs or legatees think ought to be brought for the recovery of claimed assets, except the single one that the Security Company by its charter is excused from giving a probate bond for the faithful discharge of its duties; the consequence being, as is alleged, that the petitioners have no means of bringing any suit against the company for damages except one at common law for a devastavit, which would require the joining of all the legatees interested as plaintiffs, while a part of the legatees are more largely interested in the estate of Nathan Butler and so will refuse to join. But we can not regard this reason as sufficient while the other remedies in the probate court are open to them and entirely available. They can apply to that court for the removal of the Security Company from the administration; and they can contest there the settlement of its administration account. It is to be presumed that that court will do them justice, and if it does not they can by appeal bring their case before the Superior Court. It is the policy of the law that all such matters shall be dealt with, so far as possible, in that court or in the Superior Court as an appellate probate court. Besides this, we are by no means prepared to concede that, if the right of the petitioners to a portion of the stocks in question should be lost by the neglect of the Security Company, an action at law for the damage sustained could not be maintained by a portion of the parties interested without joining the rest. We do not intend to say that the doors of a court of equity are absolutely closed against all parties situated as these petitioners are. They may present a ease of an impending irreparable injury. For instance, in a case of misapplication of funds commenced or probably to be made by an insolvent trustee, executor or administrator, with insufficient bond, that court would, on the application of parties interested, arrest his action and take the estate into its custody at once and hold it until his successor should [590] be duly qualified. But no such emergency is presented here. There is no error in the judgment complained of. In this opinion the other judges concurred.