Newcomb v. Wing

20 Mass. 168

Opinion

Parker C. J.

delivered the opinion of the Court. It is made a question, whether upon the facts set forth in the replication, admitting them to be rightly pleaded, the plaintiff is entitled to his action. The substance of the replication is, that certain real estate of the intestate had been fraudulently conveyed by him in his lifetime, and that being liable by law to his debts, it ought to have been inventoried ; and the breach of the bond alleged in the replication, is the not inventorying this real estate. It is doubtful, at least, whether the replication is sufficiently particular. It does not directly charge the defendant with being a party to the fraud, nor with knowledge in any other way, though it is strongly implied in the replication.¹

We do not however determine upon the sufficiency of the replication in this point of view; but upon other and more general grounds, we think no right to this action is shown. To maintain a suit on a probate bond, in order to obtain execution by any particular person interested in the estate, he must be a creditor with his debt ascertained, or an heir with his decree of distribution, and in either of these cases there must be a demand on the administrator before the suit is commenced.² It is not shown in the replication what sum is due to the person for whose use the suit is brought, nor that he made any demand. It appears by the indorsement on the writ, that the suit is brought under the special provisions of the statute, so as to enable the real plaintiff to have execution for the amount recovered, and if this suit should prevail, he might take the whole of the property for his debt, although there are many other creditors equally interested in the fund with himself. There is no case in which this will be allowed, except when a creditor, who has neglected to filé his claim, has discovered estate which has not been inventoried, and then the action cannot be upon the bond, but it is against the administrator for the debt, and the property discovered may be seized on execution.

In the case supposed by this replication, it the administrator, upon notice, does not obtain license to sell the estate, or otherwise account for it, the judge of probate, at the instance of the creditors, will sue the bond, not for any particular creditor, but for the whole, and the proceeds of the suit will be distributed among all. Or perhaps any creditor, who zias not filed his claim, may sue the administrator and levy upon the land ; in which case he may be answerable on his bond for waste or unfaithful administration ; and thus all the creditors will obtain their portion of the funds. No creditor can sue the bond, except according to the provisions of the statute, without license or permission of the judge of probate. Robbins, Judge &c., v. Hayward, 16 Mass. R. 524.

Replication adjudged bad.

1 See The People v. M'Donald, 1 Cowen, 189. The administrator is bound to inventory land which to his knowledge has been fraudulently conveyed by the intestate. Minor v. Mead, 3 Connect. R. 289.

But if the administrator has no knowledge that the conveyance was fraudulent, he cannot be made liable for not inventorying the property. Booth v. Patrick, 8 Connect. R. 106. See Potter v. Titcomb, 1 Fairfield, 53; Cringan v. Nicholson, 1 Hen & Munf. 428.

2 See Paine v. Moffit, 11 Pick. 500; Coffin v. Jones, 5 Pick. 61; Dawes v. Head, ante, 128; Dawes v. Swett, 14 Mass. R. 105; Paine v. Gill, 13 Mass. R. 365; Prescott v. Parker, 14 Mass. R. 429; Judge of Probate v. Briggs, 5 N. Hamp R. 66