Collins v. Collins

Holmes, J.

This is an action under the Pub. Sts. e. 136, § 19, against the administrator de bonis non, with the will annexed, of John Collins, to recover a legacy of $500.

The first defence relied on is, that the executrix was residuary legatee and gave bond to pay debts and legacies, (Pub. Sts. c. 129, § 6,) and that by so doing she made the estate her own, so that it could not be followed into the defendant’s hands by a legatee having no specific charge upon it.

The result of this contention, if correct, would seem to be, that no administrator de bonis non could be appointed in such cases, or, at least, that property not specifically bequeathed or charged would not come to his hands. But we are of opinion that it is not correct. It is true that the bond made the executrix personally liable upon it to the extent of its penalty, but that is not sufficient to exonerate the estate unless the statutes provide that it shall have that effect. We find no such provision. On the contrary, it is expressly provided in the Pub. Sts. o. 129, § 7, that the lien of creditors on the real estate shall be preserved, except on such part as shall be sold to a bona fide purchaser for value. And it is at least open to argument, that the words “and all estate not so sold may be taken on execution by a creditor not otherwise satisfied, in like manner as if a bond had been given in the other form,” are not confined to real estate.

However this may be, the purpose of the section was to confirm the doctrine of Gore v. Brazier, 3 Mass. 523, 543 , to the effect that “ the lien on the testator’s estate, real or personal, .... remains in full force, and the benefit to be derived by a creditor or legatee from the bond is merely cumulative.” Or, *506 in the language of the Commissioners on the revision of the statutes in 1835, who introduced the section, “ the whole estate of the deceased is put into his [the executor’s] hands as the fund out of which the debts are to be paid.” Commissioners’ note to c. 63, § 20.

It is true that it had been decided before the Revised Statutes, that, when an executor had given bond to pay debts and legacies, the Probate Court could not grant a license to an administrator de bonis non to sell real estate for the payment of debts, at least as against a bona fide purchaser from the executor. Thompson v. Brown, 16 Mass. 172 . See Emerson v. Thompson, 16 Mass. 429, 433 ; Clarke v. Tufts, 5 Pick. 337 . But this exception is shown to be consistent with the principle quoted from Gore v. Brazier , by the fact that it also is adopted by the statute. And that principle is so fully recognized by the later decisions that it is only necessary to cite them. Jenkins v. Wood, ante, 66. Jenkins v. Wood, 134 Mass. 115, 117 . Troy National Bank v. Stanton, 116 Mass. 435, 438 . Jones v. Richardson, 5 Met. 247 , 251. Wyman v. Brigden, 4 Mass. 150, 154 . Brooks v. Rice, 131 Mass. 408, 412 , ad fin.

The legacy was given to the testator’s wife, who was also the executrix, as trustee, until the plaintiff should be fifteen. It is not necessary to consider whether the wife’s duties as trustee were so far incident to her office as executrix that the defendant would succeed to them simply as administrator de bonis non, because the plaintiff is now of age and entitled to the sum outright, and is not seeking to enforce a trust, but to recover the sum from the estate, on the ground that no fund has ever been appropriated to the trust.

The defendant, however, contends further, that the executrix became liable at once as trustee on giving bond, and, even if that is not so, that she exonerated the estate and made herself trustee because she put apart the sum of $327.50, which would have amounted to $500 when the legatee arrived at fifteen, although she never was appointed trustee by the court, never gave bond nor did any other act as such, and although she afterwards used the sum for her own purposes.

We cannot agree to any of the propositions expressed or involved in this defence. It is true that giving bond made it the *507 executrix’s duty to set apart a fund for the trust, but a duty to pay and payment are unfortunately not the same thing. We have already shown that the liability upon the bond was only cumulative. The act of appropriation relied on was not sufficient to discharge the executrix as such, or to cut down the right of the plaintiff to come upon the residue generally. It is settled that it would not have been enough if she had appropriated a specific fund to the trust in her own mind. Miller v. Congdon, 14 Gray, 114 . We think that it does not alter the case that she put it into an envelope by itself, or otherwise physically separated it from the rest of the estate. It is commonly said that the executor must give a new bond as trustee before his liability as executor will terminate. Prior v. Talbot, 10 Cush. 1 . Daggett v. White, 128 Mass. 398, 400 . White v. Ditson, ante, 351. See Pub. Sts. c. 141, § 12. We do not see why this rule should not apply to this case, as well as to those where an executor gives bond in common form. At all events, the reasoning of Miller v. Congdon is not satisfied by acts which gave the plaintiff no greater protection than a mere mental determination. Finally, we do not think that the sum put apart was sufficient. The point was not argued, but we see no reason to doubt that the testator meant to give his granddaughter $500 with interest; not a sum which would amount to $500 when she was fifteen.

We believe that we have answered all the arguments addressed to us. We do not understand it to be disputed that assets came to the defendant’s hands which would have been applicable to the plaintiff’s claim according to the principles of this opinion. The action is not barred by lapse of time. Pub. Sts. e. 136, § 19. Kent v. Dunham, 106 Mass. 586, 591 . Brooks v. Lynde, 7 Allen, 64 , 66. Nor by the allowance of the defendant’s account while the plaintiff was a minor, and without notice to her. Pub. Sts. e. 144, §§ 9, 13,14. Pinkerton v. Sargent, 112 Mass. 110, 113, 114 . See also Cowdin v. Perry, 11 Pick. 503 , 511, 512.

Verdict set aside.