Southwick v. Morrell

121 Mass. 520, 1877 Mass. LEXIS 35

• Court: Massachusetts Supreme Judicial Court
• Decided: January 22, 1877
• Status: Published

Opinion

Endicott, J.

The relief prayed for in this bill rests mainly on the refusal of the defendant, who is co-executor with the plaintiff, to sign a petition to the Probate Court for license to sell real estate in this Commonwealth for the payment of certain debts, one of which is secured by mortgage on land in Maine, and is not payable until the death of the defendant. Whether the defendant has failed to perform his duty as executor cannot be determined in this case; that question must be decided by the Judge of Probate, who, upon cause shown, may remove him from his office. Gen. Sts. e. 101, § 2. Nor can the fact that the defendant has expressed his intention to appropriate funds in his hands to the payment of legacies instead of debts, or that he has attempted to collect rents himself both in this State and in Maine, afford any ground for the maintenance of this bill.

The bill is not in form or in substance a bill for instructions. The prayer is, that this court may order a sale of the real estate, and, after applying the proceeds to the payment of the debts, determine all questions that may arise in regard to the legacies and the distribution of the property, and compel the defendant to perform his duty or discharge him from his trust. In other words, it is an attempt to transfer the settlement of an estate from the Probate Court to this court, sitting as a court of equity, simply because the executors fail to agree, and the defendant has refused to join the plaintiff in a petition for leave to sell real estate. This court has no jurisdiction in equity over this subject matter, and the plaintiff, if aggrieved, must seek her remedy in the Probate Court. Decree affirmed.