HOLLAND v. BALL

Executor and Administrator. Conversion. Equity Pleading and Practice, Appeal.

A transfer by an executor to himself of shares of stock belonging to his testator unexplained is in itself a wrongful conversion. In the present case there was an express statement in the account of an executrix of an appropriation and conversion to her own use of property of her testator which included the shares in question.

On an appeal to this court from the decree of a single justice an agreement of counsel, that the copy of a certain will printed in the Massachusetts Reports in the report of another case between the same parties may be referred to, has no effect upon the record before this court, which includes only those matters that were before the single justice when he made the decree.

LORING, J.

The only question of law presented here is whether an executor acquires title to shares of stock belonging to the estate of his testator by wrongfully transferring them into his own name.

It is elementary law that an owner does not lose his property in a chattel by a wrongful conversion of it by another. The owner may at his election hold the wrongdoer for damages or retake the chattel owned by him. This is plainly stated in Glaspy v. Cabot, 135 Mass. 435, cited by the appellant together with Choate v. Arrington, 116 Mass. 552, and King v. Ham, 6 Allen, 298. There is nothing in any of these cases which supports the appellant's contention.

There is no ground for the argument that the executrix bought the stock in question of herself. The transfer to herself unexplained is of itself a wrongful conversion. But the fact is put beyond a doubt by the statement in the account that the executrix "appropriated and converted to her own use all the remainder of the estate" not spent by her. It is apparent from the statement of the items in the decree of the Probate Court making up the $7,628.33 in question that this covers the shares of stock here in question. We do not mean to intimate that if she had undertaken to buy the stock of herself the sale could not have been avoided.

What remedy or remedies the administrator de bonis non may have, based on the subsequent sale by the executor of the executrix or otherwise, is not now before us. See in this connection Sewall v. Patch, 132 Mass. 326. All that we now are called upon to decide and do decide is that the shares of stock in question were the property of the estate of Henry Holland at the date of the decease of his widow, the executrix of his will.

The statement in the brief for the appellant that the will of Henry Holland which appears in Ball v. Holland, 189 Mass. 369, may be referred to cannot be entertained by the court. A case not passed upon by the single justice who entered the decree appealed from cannot be substituted by agreement of counsel. The question before us is the correctness of the decree of the single justice. Robinson v. Brown, 182 Mass. 266.

In our opinion the appeal is frivolous, and the entry must be

Decree affirmed, with double costs.