Tbe opinion of tbe Court was drawn up by
Without repeating what has been reported in Knight and wife v. Loomis, 30 Maine, 204, we will at once proceed to a consideration of tbe legal rights of tbe present parties as disclosed by subsequent transactions. In that case it was decided, that an administrator, with tbe will annexed, does not succeed to tbe rights and duties of an original executor, appointed trustee by tbe will. And tbe present appellee, who was defendant in that suit, brought by a legatee, prevailed, upon tbe ground that none but a legal trustee could reach tbe legacy in bis bands; for, say tbe Court — "If a trustee, duly appointed to take charge of tbe sum bequeathed to Samuel Weston, should call upon tbe defendant as administrator for tbe money now in bis bands,
Since that decision, the present appellant has been duly appointed such trustee, who now calls for and demands of the appellee the money which, in the former case, was shown to be in his hands as the successor of the executor; for, again, said the Court, in the case before cited, — "By extracts from the probate records, it appears that, in February, 1840, the defendant filed his account in the probate office, in which he charged himself with the sum of §1700, out of which the money that was subsequently in his hands arose.”
But since that time, the appellee, possessed of the instinct of a special pleader in the matter of " confessing and avoiding,” pretends, and has induced the Probate Court to believe, that no such fund has ever come into his hands. This is denied by the appellant, and thus is presented an issue of fact, to determine which, we must look into the history of this whole transaction, or at least, so much of it as has been disclosed since the former opinion.
It appears that one Benoice Johnson, on July 5, 1831, by his will of that date, among other legacies, bequeathed to Samuel Weston, the executor, the sum of seventeen hundred dollars — "in trust always — and it shall be the duty of said Weston to let out upon interest the said sum of seventeen hundred dollars upon good security, and it shall also be his duty to collect the interest on said sum and to pay the same to my beloved wife Charlotte (the present cestui que trust) yearly,” &c., and, after her decease, one-half of .the principal to the heirs of Sally Tuttle, wife of James Tuttle, and the other half to the heirs of George Loomis (the present appellee.) The testator soon afterwards died, and his will was duly approved on February 7, 1832, and the administration of the estate duly committed to Samuel Weston, the executor named in the will, who, on the same day, filed his statute bond in the probate office, with George Loomis (the appellee) and one Benoice Tuttle his sureties therein. Wes
"To received of the administrator on the estate of the executor of the last will and testament of said Johnson, $1700,” which, on the third day of March following, was received by the Probate Judge, "ordered to be put on file and recorded,” and so remained as a matter of record, undisturbed until 1846, when the appellee filed his petition to the Probate Court, representing — "That said charge was made to himself as administrator, as aforesaid, through misapprehension or mistake, that in fact said sum of seventeen hundred dollars never came into his hands, to be administered. Wherefore he prays your Honor, that the mistake above mentioned may be corrected.” Upon which petition, after due notice to the present cestui que trust, and her appearance and a full hearing thereon, it was adjudged by the Court, at an adjourned term, held in March, 1848, "that said petition be denied, and that said Charlotte (the cestui que trust) and Henry (her present husband) recover against the, said Loom-is (the present appellee) their costs, taxed at eight dollars and seventy-five cents, and that execution issue therefor agreeable to the statute in such cases provided.”
Upon the foregoing record, Loomis (the present appellee) rested apparently satisfied and contented, or at least dormant, until action on the part of the cestui que trust, the widow of the testator, who, not having received her annual interest, according to the special bequest of her former husband, cited the appellee to appear before the Probate Court and settle his administration account. He did so appear, and claimed the same deduction, and for the same cause, as
The next development, in the order of time, is the action of the cestui que trust and her husband, in her right, against the present appellee for'her annual instalment, it being for the amount of the interest on the sum of $1700, which, before that time, was determined and adjudged by two solemn decisions of the Probate Court to be in the hands of the appellee. The result of that case, (Knight v. Loomis,) and the reasons therefor, have already been alluded to and explained. Such was the situation of the parties, as apparent by the i-ecords, both of the Probate and of this Court, in 1849, when that opinion was delivered, to wit, the funds were in the hands of the appellee, but no trustee was in Court authorized to call them out. But now, in the present process, such a trustee does appear, when the appellee attempts for the third time to present to the Probate Court an issue, which, on the two former occasions in the same Court, has been settled against him, and, if the decree from which the present appeal has been taken be correct, he has been successful.
It cannot be controverted, that, on a final settlement of an administrator’s account in the Probate Court, former settlements may be opened for the purpose of rectifying mistakes, whether originating in fraud practised on the Court,
We have seen that the appellee was one of Samuel Weston, the executor’s, sureties on his official bond; that one half of the legacy, after the decease of the widow, was to revert to this surety’s heirs; and that Weston had received the amount in controversy, as such executor, to be accounted for, either as executor or trustee under the provisions of the will. He accepted the trust as executor, but not as trustee, by reason of not procuring the bond specified in the will. Fie then held the estate as executor only, subject to the call of a legal trustee; and for whose default to respond to such call, his sureties were clearly answerable. He subsequently dies, and, perhaps insolvent; but, if so, such fact does not exonerate his bondsmen from their liability. Under such circumstances his surety (the present appellee) is appointed administrator de bonis non, with the will annexed ; thereby, as a representative of the fund in the hands of his principal on the official bond, he becomes enabled to delay any action thereon. Consequently it" was the duty of the Probate Judge to inform him that he must either credit in his account the amount of his legal liability to the legatees, or resign his trust, in order that ho might, by some disinterested administrator, be called to answer for his surety-ship. And he, at that time, with a full knowledge of all such facts, charged himself with liabilities without suit, which might have been recovered of him on suit. That such was the fact is further apparent from his. subsequent conduct in his and his co-surety’s filing their claim against
The decree of the Probate Gourt is reversed, with costs to appellant. And the appellee is to stand charged for' the sum of fifteen hundred and sixty-nine dollars and fifty- ' three cents.