[74]*74The opinion of the court was drawn up by
Whitman C. J.
This is an action of debt against the defendant, on a bond given by him as administrator of the estate •of Horatio Smith, deceased. The action purports to be for the benefit of certain individuals, alleged to be the heirs to that ■estate; and no allegation is inserted, that it was instituted by the express authorization of tire judge of probate. We must, therefore, regard it as having been brought under and with reference to the Rev. Stat. c. 113, § 5, 6, and 7, authorizing heirs •and others to commence suits on such bonds, without special leave for the purpose from the judge of probate. • Hence it is insisted, in defence, that the action cannot be maintained, without proof that there has been a decree of distribution, as provided in § 12 of the same statute. The plaintiffs in reply, insist, that they were expressly authorized to institute the suit by the judge of probate; and that in such case they are not bound to show a compliance with the requirements in <§> 12. And if the action had been professedly commenced, and had so appeared in the declaration, by the “ express authority” of the judge of probate, as mentioned in the proviso at the conclusion of § 7 of said statute, and the proof had corresponded with the allegation, we are far from entertaining a doubt, that a compliance with the provisions of said § 12 would have been necessary to the maintainance of the action. That actions, on administrators’ bonds, will lie in cases other than those depending on <§. 5, 6, 7, 10, 11 and 12, is entirely evident. This the proviso, before alluded to in $ 7, renders undeniable. That proviso is in these words, “ provided that this, and the two preceding sections, shall not be construed as applicable to suits on such bonds, when commenced by the express authority of the judge of probate.” It is no where said in the statute, that the judge may commence such actions of his own mere motion. But the proviso shows, that they are to be commenced by his express authorization, except in the cases specified in the above named sections. That there are cases in which it may often become necessary to institute suits by the express authority of the judge of probate, is' unquestionable. If an administrator [75]*75returns no inventory, or settles no account at the probate office, or refuses to appear when cited by the probate court, to settle an account, an action upon his bond should be ordered to be instituted, to recover for the benefit of all concerned in the estate, as provided in <§> 16, of said statute. And it is very-clear that a recovery for the full value of whatever personal property of the deceased has come to his (the administrator’s) hands, without any discount or allowance for charges of administration or debts paid, when an administrator, upon citation for the purpose has refused or neglected to account upon oath, as provided in § 16, must be for the benefit of the estate. No individual can be allowed so to recover for his sole benefit. That some or all of those interested in the estate may so recover for the general benefit, for the purpose of having the same administered upon as belonging to the estate, and constituting part or the whole of the general assets, provided it be done by the express authority of the judge of probate, can scarcely be questioned. It would seem that the authorization to put the bond in suit, must be of some or all of those interested; for the idea that he is, of his own mere motion, to commence the suit, upon being by himself expressly authorized so to do, is a solecism too gross to be imputed to the Legislature. If he were to commence the suit he would be a party, and answerable for costs to the defendant, if the latter should prevail; and, moreover, must be expected to make all the advances for the expenses for evidence and counsel fees in carrying on the suit. To these it was never intended that he should be subjected. The action, therefore, except in the cases contemplated in $ 5, 6, and 7, and 10, 11 and 13, must be by persons, who will undertake to carry forward the suit, and be responsible for costs, in case of failure; and by the express authority of the judge of probate; and this authorization should appear in the process; otherwise it could not be known that the proceeding was not to be had under the said 5, 6, 7, 10, 11 and 12th sections of the statute which would constitute an entire different cause of action. In the latter case a specific sum would be sought to be recovered for the [76]*76benefit of the plaintiff; whereas in the former, general damages would be the object of the suit, and for the benefit of all, indiscriminately, who might be interested in the estate.
These views are believed to be consonant to those to be met with in Robbins, judge, v. Hayward, 16 Mass. R. 524; Coffin, judge, v. Jones, 5 Pick. 61, and Barton, judge, v. White. 21 ib. 58. It must be admitted, however, that there are decisions not easily reconciled with those. In Coney, judge, v. Williams & al. 9 Mass. R. 114, the reporter’s abstract, showing his understanding of the import of that decision is, that, “ where the administrator of an insolvent estate unduly neglects to settle the account of his administration, &e. an action lies on the administration bond for the benefit of a creditor, besides the remedy against the proper estate of the administrator.” The late Chief Justice Mellen, in delivering the opinion of the Court, in Dickinson, judge, v. Bean & al. 2 Fairf. 50, understands that case to decide, “ that the official negligence of the administrator (in case of an estate represented insolvent) to comply with the provisions of the act of 1794, § 5, by settling their accounts, within the six months prescribed, was considered as dispensing with the necessity of a demand,” which he says was not proved in that case to have been made. And he considered the re-enactment in our State, after separation, of the same provision, which was in force when that decision was made, and eight years after it, shew an adoption of the principle of that decision. In Barton, judge, v. White, 21 Pick. 58, Mr. Chief Justice Shaw, in delivering the opinion of the Court, lays down the law to be, that a party plaintiff, in such case without dividend ascertained, and a demand of the amount awarded, cannot recover. And yet he held that the case of Coney, judge, v. Williams, was not inconsistent with his decision; and says in that case, “a judgment at common law had been recovered by the creditor against the estate, and the amount ineffectually demanded of the administrator, before the commencement of the action.” He seems further to have understood that case as distinguishable from, and not inconsistent with the decision he was then delivering, because that [77]*77case, he says, was decided upon the ground that the plaintiff had obtained a judgment at law, and that the defendant could not set up in defence his negligence in not having settled an account, so as to enable the judge of probate to make a decree of distribution, lie does not seem to have adverted to the express enactment, that, before a creditor can support such an action, he must produce the decree of distribution, and that it would be his folly to institute such an action before he was certain he could do so.
Free access — add to your briefcase to read the full text and ask questions with AI
[74]*74The opinion of the court was drawn up by
Whitman C. J.
This is an action of debt against the defendant, on a bond given by him as administrator of the estate •of Horatio Smith, deceased. The action purports to be for the benefit of certain individuals, alleged to be the heirs to that ■estate; and no allegation is inserted, that it was instituted by the express authorization of tire judge of probate. We must, therefore, regard it as having been brought under and with reference to the Rev. Stat. c. 113, § 5, 6, and 7, authorizing heirs •and others to commence suits on such bonds, without special leave for the purpose from the judge of probate. • Hence it is insisted, in defence, that the action cannot be maintained, without proof that there has been a decree of distribution, as provided in § 12 of the same statute. The plaintiffs in reply, insist, that they were expressly authorized to institute the suit by the judge of probate; and that in such case they are not bound to show a compliance with the requirements in <§> 12. And if the action had been professedly commenced, and had so appeared in the declaration, by the “ express authority” of the judge of probate, as mentioned in the proviso at the conclusion of § 7 of said statute, and the proof had corresponded with the allegation, we are far from entertaining a doubt, that a compliance with the provisions of said § 12 would have been necessary to the maintainance of the action. That actions, on administrators’ bonds, will lie in cases other than those depending on <§. 5, 6, 7, 10, 11 and 12, is entirely evident. This the proviso, before alluded to in $ 7, renders undeniable. That proviso is in these words, “ provided that this, and the two preceding sections, shall not be construed as applicable to suits on such bonds, when commenced by the express authority of the judge of probate.” It is no where said in the statute, that the judge may commence such actions of his own mere motion. But the proviso shows, that they are to be commenced by his express authorization, except in the cases specified in the above named sections. That there are cases in which it may often become necessary to institute suits by the express authority of the judge of probate, is' unquestionable. If an administrator [75]*75returns no inventory, or settles no account at the probate office, or refuses to appear when cited by the probate court, to settle an account, an action upon his bond should be ordered to be instituted, to recover for the benefit of all concerned in the estate, as provided in <§> 16, of said statute. And it is very-clear that a recovery for the full value of whatever personal property of the deceased has come to his (the administrator’s) hands, without any discount or allowance for charges of administration or debts paid, when an administrator, upon citation for the purpose has refused or neglected to account upon oath, as provided in § 16, must be for the benefit of the estate. No individual can be allowed so to recover for his sole benefit. That some or all of those interested in the estate may so recover for the general benefit, for the purpose of having the same administered upon as belonging to the estate, and constituting part or the whole of the general assets, provided it be done by the express authority of the judge of probate, can scarcely be questioned. It would seem that the authorization to put the bond in suit, must be of some or all of those interested; for the idea that he is, of his own mere motion, to commence the suit, upon being by himself expressly authorized so to do, is a solecism too gross to be imputed to the Legislature. If he were to commence the suit he would be a party, and answerable for costs to the defendant, if the latter should prevail; and, moreover, must be expected to make all the advances for the expenses for evidence and counsel fees in carrying on the suit. To these it was never intended that he should be subjected. The action, therefore, except in the cases contemplated in $ 5, 6, and 7, and 10, 11 and 13, must be by persons, who will undertake to carry forward the suit, and be responsible for costs, in case of failure; and by the express authority of the judge of probate; and this authorization should appear in the process; otherwise it could not be known that the proceeding was not to be had under the said 5, 6, 7, 10, 11 and 12th sections of the statute which would constitute an entire different cause of action. In the latter case a specific sum would be sought to be recovered for the [76]*76benefit of the plaintiff; whereas in the former, general damages would be the object of the suit, and for the benefit of all, indiscriminately, who might be interested in the estate.
These views are believed to be consonant to those to be met with in Robbins, judge, v. Hayward, 16 Mass. R. 524; Coffin, judge, v. Jones, 5 Pick. 61, and Barton, judge, v. White. 21 ib. 58. It must be admitted, however, that there are decisions not easily reconciled with those. In Coney, judge, v. Williams & al. 9 Mass. R. 114, the reporter’s abstract, showing his understanding of the import of that decision is, that, “ where the administrator of an insolvent estate unduly neglects to settle the account of his administration, &e. an action lies on the administration bond for the benefit of a creditor, besides the remedy against the proper estate of the administrator.” The late Chief Justice Mellen, in delivering the opinion of the Court, in Dickinson, judge, v. Bean & al. 2 Fairf. 50, understands that case to decide, “ that the official negligence of the administrator (in case of an estate represented insolvent) to comply with the provisions of the act of 1794, § 5, by settling their accounts, within the six months prescribed, was considered as dispensing with the necessity of a demand,” which he says was not proved in that case to have been made. And he considered the re-enactment in our State, after separation, of the same provision, which was in force when that decision was made, and eight years after it, shew an adoption of the principle of that decision. In Barton, judge, v. White, 21 Pick. 58, Mr. Chief Justice Shaw, in delivering the opinion of the Court, lays down the law to be, that a party plaintiff, in such case without dividend ascertained, and a demand of the amount awarded, cannot recover. And yet he held that the case of Coney, judge, v. Williams, was not inconsistent with his decision; and says in that case, “a judgment at common law had been recovered by the creditor against the estate, and the amount ineffectually demanded of the administrator, before the commencement of the action.” He seems further to have understood that case as distinguishable from, and not inconsistent with the decision he was then delivering, because that [77]*77case, he says, was decided upon the ground that the plaintiff had obtained a judgment at law, and that the defendant could not set up in defence his negligence in not having settled an account, so as to enable the judge of probate to make a decree of distribution, lie does not seem to have adverted to the express enactment, that, before a creditor can support such an action, he must produce the decree of distribution, and that it would be his folly to institute such an action before he was certain he could do so. Yet the case then before him was one of neglect on the part of the administrator to settle his account, the estate being represented insolvent, whereby the creditor, by the negligence of the administrator, had been prevented from placing himself in a condition to recover. And it is difficult to perceive, why such negligence should not have been equally available to the plaintiff in the one case as in the other. Evidently Mr. Chief Justice Mellen was not, in Dickinson v. Bean & al. impressed with any such distinction. That case and Barton v. While, do not seem to be distinguishable in principle from each other; yet the two distinguished Chief Justices, and their associates, seem to have come to conclusions diametrically opposite. The decision in Dickinson, judge, v. Bean & al. is considered by the Court in this State as supported decisively by that of Coney, judge, v. Williams & al.
The statute law in this State is now in substance precisely what it was when Dickinson, judge, against Bean & al. was decided. It was then comprised in two acts. It is now comprised in one ; and the re-enactment took place a number of years after the decision in Dickinson v. Bean & al. and upon the principle noticed by Mr. Chief Justice Mellen, it might be argued, that the construction put upon the statutes in that case, was confirmed by the re-enactment. But the language of the Rev. Stat. c. 113, is too plain to admit of any doubt; and it certainly negatives any conclusion, that, however negligent the administrator may have been, any action can be maintained against him on his bond till the prerequisites prescribed have been complied with. In this case the distributive shares of the heirs have not been ascertained and decreed. The law at [78]*78this time as settled in Massachusetts undoubtedly is, that such an action cannot be maintained. The late decisions there are to that effect, as appears by the three cases first above cited. The statutes in this State and in that are understood, in reference to this matter, to be entirely similar.
It may be remarked, however, that in Massachusetts, till after the separation of this State from that, instead of inserting the names of those for whose benefit a suit might be brought on an administration bond, it was required that an indorsement to the same effect should be made upon the writ, as will be perceived in the case of Coffin, judge, v. Jones; but that is a difference which can in nowise affect the merits of the case.
It has been suggested by the plaintiffs in argument, that leave might be granted to" amend, so as to make the action the same as if commenced professedly by the express authority of the judge of probate. But in effect this would introduce a new party as plaintiff, and a new and different cause of action ; and make a different ground of defence applicable, as before suggested. Such an amendment could be granted only upon terms; and not without an opportunity to the adverse party to be heard upon a motion for that purpose, if at all.
Plaintiffs nonsuit.