Executor and Administrator, Petition for leave to bring suit on bond, Accounts. Bond, Technical breach. Probate Court. Appeal.
Leave to bring suit against an administrator on his official bond may be refused where a single justice who hears the petition on appeal from a decree of the Probate Court finds on evidence warranting the finding that there was no evidence that there had been "any breach of the bond which has brought any damage to the estate, and I do not know that there has been a technical breach. Possibly there has been. . . . There is no such breach of his bond as would justify the Probate Court in ordering an action to be commenced upon it."
Where, on an appeal from a decree of the Probate Court reforming and then allowing in amended form accounts of an administrator, a single justice of this court after hearing evidence makes findings showing that there is no basis of fact for the objection of the appellant, and his findings are well warranted by the evidence, which is reported in full, this court will not reverse such findings.
SHELDON, J.
1. The first of these cases comes before us upon an appeal from a decree of the Probate Court dismissing the appellant's petition for leave to sue the respondent upon his official bond as administrator of the estate of Nathan Crane. At the hearing before a single justice of this court, he found no evidence of any breach of the bond which had brought any damage to the estate, and did not find that there had been even a technical breach. He ruled that the bond ought not to be put in suit merely on the ground that the administrator should account for interest because there had been delay, whether that delay was due to him or not; and found affirmatively that there was no such breach of the bond as would justify the Probate Court in ordering suit brought upon it. In our opinion these findings were well warranted by the evidence, and we could not reverse them unless they were plainly wrong. Lindsey v. Bird, 193 Mass. 200. Regester's Sons Co. v. Reed, 185 Mass. 226. Plainly upon these findings leave to bring suit upon the bond ought not to be granted. As to the first reason assigned in the petition, it is enough to say that the administrator does not contest the correctness of his account as reformed by the Probate Court; and that account, so reformed, appears to be a true account. The second and third reasons likewise are not supported by the facts in evidence.
2. The second case is an appeal from the allowance by the Probate Court of the administrator's accounts as reformed by that court. Neither one of the four specific objections made by the appellant to these accounts has been maintained by the evidence. The final payment to Mrs. Barnes was made in good faith after her claims had been established by litigation which the administrator exercised due care in defending. The amount due on the Davis mortgage, it was found, was properly allowed as a loss. The mortgage note which had been due from the administrator to the intestate was shown to have been paid to the intestate in his lifetime, and accordingly the administrator should not be charged with the amount thereof.
In each case the order must be
Decree affirmed.