Dunbar v. Patrick

9 N.E.2d 308, 298 Mass. 29, 1937 Mass. LEXIS 799

Opinion

Lummus, J.

The controversy between the appellant, a creditor of the insolvent estate of Alice D. Hall, and Harry C. Dunbar, the executor of her will, has been here twice before. Patrick v. Dunbar, 294 Mass. 101. Patrick v. Dunbar, 296 Mass. 40. The present appeal is from a decree allowing the first and second accounts of the executor. We have no doubt that a creditor may appeal in a case like this, where the estate is insolvent.

In his second account, the executor charges himself with $300 received from the sale at auction of a parcel of land under a license from the Probate Court. The bids were made, as the auctioneer orally directed, large enough to include the mortgage of $1,300. The highest bidder, who became the purchaser, bid $1,600, saying “This bid includes the mortgage.” To this the auctioneer assented. The purchaser paid $300, and received a deed. The appellant seeks to charge the executor with $1,600, instead of $300. But it is plain that everyone interested understood that in effect the highest bidder offered $300 for the right, title and interest of the deceased (Tyndale v. Stanwood, 182 Mass. 534, 536), subject to a mortgage of $1,300. O’Connell v. Kelly, 114 Mass. 97. Morton v. Hall, 118 Mass. 511. Cook v. Basley, 123 Mass. 396. Brooks v. Bennett, 277 Mass. 8. There was no legal error in the course adopted, although it is not to be commended.

The executor concedes that by a clerical error the amount of the inventory with which his first account began was less by $100 than the actual amount of the inventory. To cure this error, the balance shown in the second account is to be increased by $100. As thus modified the decree is

Affirmed.