Minot v. Norcross

Devens, J.

In White v. Ditson, 140 Mass. 351 , it was held that the sureties on the bond of Healy, as executor of the will of Percival, were not responsible, in view of the limited character of the bond given by them previously to the St. of 1880, o. 152, (Pub. Sts. c. 129, § 5,) for the proceeds of the real estate which had been sold under a direction by the testator to his executor named, “ or whoever shall execute ” the will, to convert his real estate into money. When real estate had been changed into money by virtue of a power in the will, it was not, in our view, that personal property for the administration of which the sureties became responsible. So far as the real estate was concerned, their obligation was definitely limited to “ the proceeds of his real estate that may be sold for the payment of his debts and legacies.”

By the will of Percival, the whole property (after payment of certain debts and legacies) was bequeathed to Healy, who was also executor, in trust, to be disposed of by him for charitable purposes. Healy never settled any account as executor, nor did any definite act in the Probate Court by which it could be held that he had discharged himself in the capacity of executor, and had accepted the trust imposed on him, and thus thereafter held the property as trustee. But while the sureties were held not to be responsible for the proceeds of real estate sold by Healy, it by no means follows that he was not responsible therefor as executor, or that the money received from the sale of the real estate was not, as against him, of the goods and chattels, rights and credits, of the estate which he was bound faithfully to administer in the execution of the will.

That, in some form and to some one, the estate of Healy must respond for the money received by him from the sale of the real estate of Percival must be conceded. Marvel v. Babbitt, ante, 226. The question before us is, whether the administrator de bonis non of Percival may now, as “ the goods and estate of the deceased not already administered,” prove a claim for the amount received by Healy from the sale of the real estate before the commissioners of insolvency on his estate. The administrator de bonis non has already recovered by action upon the executor’s bond of Healy the balance of the personal property which Healy had failed to devote to the purposes of the trust.

*335 It is urged, that, as soon as the sale of the real estate was made, the proceeds belonged to Healy, not as executor, but as trustee. It was the mode which the testator had provided for the execution of his will, that the whole real estate should be turned into money, which sum would be subjected to his debts and legacies, the residue of the whole estate being bequeathed in trust. The power and direction to sell the real estate, and convert it into money, was not a personal trust, but was conferred upon whomsoever might execute the will, and who should receive the money to devote to the purposes of the will. If Healy had declined to execute the will, and an administrator with the will annexed had been appointed, he might have sold the real estate, but he would have held.the proceeds as the assets of the estate, and not of the devisee in trust, who had no right in the proceeds of the real estate specifically. If Healy had commenced the execution of the will, had sold the real estate under the authority given, and, with the proceeds in his possession, had then resigned his office, or been removed therefrom, it could not have been necessary to appoint an administrator de bonis non to receive the personal property not administered, and also a trustee to receive the proceeds of the real estate. The whole of it, that which was originally personal and that which had been lawfully converted from realty to personalty by the authority of the will, was of the goods and estate not already administered.

Whether, in the case at bar, after the administrator de bonis non shall have recovered against the estate of Healy, it shall be determined that a new trustee can be appointed to execute the charitable trust upon which the residue was bequeathed, and whether, if he cannot, the next of kin may have a claim against that part of the residue which was originally personalty, or whether, if so, the heirs at law are'entitled to assert a right, as against the proceeds of the real estate, as well as other questions which have been suggested, need not now be decided. As the matter stands, the funds which were in the hands of Healy were the goods of the testator subject to administration, even if the money was derived from the sale of land made by him for the purpose of converting it into personal property in accord anee with the direction of the will.

*336 The case of Buttrick v. King, 7 Met. 20 , sustains the view we have taken. A husband'deceased had created a trust fund primarily for the benefit of his wife, who was to receive the income, and, at her decease, the property was to be divided among his children. The wife had power to sell and convey any part of the property, but it was directed that the proceeds of the sale should be held subject to be divided among his children, as he had previously directed the property to be. Under this authority, she sold lands and took notes therefor, which, after her death, were paid to her administrator. It was held that the administrator de bonis non of the husband’s estate was entitled to recover of the administrator of the wife’s estate the money in his hands received by him in payment of the notes. “ The administrator de bonis non of the husband,” says Chief Justice Shaw, “is the proper person, we think, to take and administer the fund, because, if there should still be debts due from the testator, as there may be, notwithstanding the lapse of time, on covenants real, or the like, the creditors would be entitled to payment before the legatees. Otherwise, the administrator de bonis non will be bound to pay over to the legatees, according to the will.”

We are of opinion that, in the case at bar, the administrator de bonis non was entitled to prove against the estate for the amount received by Healy as the proceeds of real estate.

The inquiry remains, whether the burden is upon the plaintiff to show that the sum thus received has not been paid out in charities in execution of the trust upon which he was entitled to receive the residue. Although Healy did not settle his account as executor, nor transfer this residue to himself as trustee, yet, as it is found that there were no debts and legacies unpaid, if he distinctly devoted as trustee any of the funds to the charitable purposes contemplated by the will, to that extent the damages should be reduced. Of such deduction he has heretofore had the full benefit apparently. White v. Ditson, ubi supra. He wholly failed to account as executor or trustee; had he rendered accounts in the‘proper court, he there would have been required to produce vouchers, receipts, or other proper evidence of payment. It would certainly be a curious anomaly, if, by failing to account, he could throw upon one claiming the property the burden of showing that he had not lawfully expended the fund. *337 The administrator de bonis non who succeeds can have no knowledge in relation to the dealings of the executor with the property, who has himself a distinct duty to account for it. White v. Ditson, ubi supra. Choate v. Arrington, 116 Mass. 552 . Upon the sum found due by the defendant, interest should be allowed from February 26, 1867, for reasons fully stated in White v. Ditson, ubi supra.

The defendant contends, that, if the plaintiff has any remedy, it is in equity only, and that equitable claims are not provable before commissioners in insolvency; but such liabilities were made provable by the St. of 1884, c. 293. * Judgment on the finding.

“ Equitable liabilities shall be deemed to be debts provable against estates in. insolvency and against estates of deceased persons represented insolvent.”