Fay v. Hunt

The opinion of the Court was drawn up by

Parker C. J.

We think it very clear that the persons, at whose promotion the bond was put in suit, have ni such *402interest m the bond or in the estate of the intestate, as will entj£je £]jem t0 an execution for any part of the penalty How do they stand ? Not as creditors of the intestate, nor in any way connected with the estate as his. They were creditors of his son, and levied their execution upon land supposed to belong to him, and which but for the mortgage did belong to him. But they lost their title by means t" the foreclosure of the mortgage. Their debt still subsists, and they may have remedy against other property or the person of George their debtor. But what right have they to come upon the administrator of this estate or his sureties ? It is said they are assignees of George Wright, of the estate which descended to him incumbered with the mortgage. This is true, if he was seised of the reversion after the widow’s dower, and by virtue of such assignment, which was in fact of nothing but an equity of redemption, they had the right to redeem, and perhaps could have compelled the administrator, on a bill for that purpose, to have redeemed. But they acquired no right in any fund which might be raised by the judge of probate by a judgment for the penalty of the bond, because they had no connexion with the estate of the intestate.

The cases cited by the plaintiff’s counsel do not support the ground he has taken. In Paine, Judge &c. v. Gill, 13 Mass. R. 368, Brigden, who was a devisee, sued out a scire facias to recover the value of the land which had been specifically devised to him, but which had been taken on execution by a creditor of the testator. The executor had given bond to pay debts and legacies. Brigden therefore was directly interested in the bond. So in Selectmen of Boston v. Boylston, 4 Mass. R. 324, the inhabitants of Boston, or the selectmen for their use, were legatees by the will. In the first case it was determined, that those who have a direct interest in the bond may have a suit upon it, though not heirs, creditors or legatees ; but no case has admitted those who may have an indirect interest only to have the right.

But upon the statement of facts agreed in this tase, we cannot see any meritorious ground of action upon the bond, even if the promovents of this suit were entitled to prosecute it. There may be a technical breach of condition on ac-

*403count of the representation to the judge by the administrator, tnat he had paid the debt of 1000 dollars for which the estate had been mortgaged. This charge was evidently made by mistake ; indeed the course taken by the administrator in the execution of his license to sell was erroneous. The legal title to the land was in the mortgagee. There was then only an equity of redemption, to be sold ; and going upon the presumption that the sale was fair, and that the price obtained was equal to the value of the land unincumbered, a presumption we are authorized to make, as it is agreed that in all things, except in the settlement of his accounts, the administrator conducted fairly, the result to the estate is the same as if the equity had been sold and the mortgage left outstanding. The proceeds would have been the amount of the price given at the sale, deducting the amount of the mortgage and interest; and then if the purchaser had not redeemed, the consequence would have been the same as has now taken place. So if he had actually paid off the mortgage, the estate was gone from the heirs, and the proceeds distributed among the creditors. Nothing would have been left for the heirs or the creditors of the heirs. In point of equity therefore no wrong has been done to the estate, and there is nothing for the heirs or their creditors to complain of. The administrator was the sufferer, for he lost, by reason of inability to discharge the mortgage, all the money which he has accounted for with the judge of probate. If therefore the suit were maintained on account of the erroneous settlement in the pro bate office, on a hearing in chancery the damages would be merely nominal. In this view of the subject it would have been discretionary with the judge of probate to allow or refuse a suit upon the bond, upon the application of any one not standing in the light of heir or creditor to the estate, and it would, under these circumstances, have been a due exercise of his discretion to deny such application.1

If however it should be supposed by the heirs, or those claiming under them, that the administrator had obtained an advantage by having become the purchaser of the estate, *404a remedy would be open by a bill in equity, for he would be considered as be Iding in trust for all who are interested in the estate, 2 and perhaps in this way might be made chargeable for negligence in not redeeming the mortgage, if it can be made to appear that thereby any loss has accrued to them. But for the reasons before given, this action cannot be maintained, and therefore the plaintiif must be nonsuited.

See Revised Stat. c 70 § 3, 6.

See Jenison v. Hapgood, 7 Pick 1.