In re Leahey

The opinion of the court was delivered by Taft, J. The relator seeks to be discharged upon habeas corpus from imprisonment in the Windham County jail. He was administrator of the estate of Patrick Leahey, and as such administrator received, as a part of the estate, fourteen hundred forty-eight 26-100 dollars. He resigned as administrator, and was ordered by the Probate Court to pay said sum, then in his hands, to his successor, Sta,rkey. Upon his failure so to do, Starkey brought an action of debt against him, the writ issuing as an attachment under R. L. s. 1485, the proper affidavit having been filed, and recovered judgment at the February Term in 1881 of the Supreme Court, in Windham County, for the sum above mentioned; and under s. 1503 R. L., the court adjudged that the cause of action arose from the willful and malicious act of the defendant, and that a certified execution might issue against him. The relator was committed under an execution issued upon that judgment, and is now seeking to be discharged. It does not need argument to show that money, held by an administrator as assets of an estate, is held in trust, or in a fiduciary capacity, and the character in which it is held, is not changed by the settlement of his account in the Probate Court. Such settlement is simply determining the amount which he has in his hands and which he should pass over to the parties entitled to it. It is not a simple contract debt which he is liable to pay to a creditor. The funds are not his; he has no right to use them for his own purposes; he holds them as a strict trust, to pay them away only upon order of the court. This beingThe nature of his possession of the funds, the attachment of the relator and his imprisonment upon the execution were legal; and it is ordered that he be remanded to the custody of the jailer.