Equity Jurisdiction, To enforce assignment of interest in estate of decedent, For an accounting. Executor and Administrator. Judgment. Probate Court, Decree.
If a debtor assigns to his creditor an interest as legatee under a will "up to the" amount of the debt as security for the payment of the debt, and the creditor gives notice of the assignment to the executor of the will, who assents to it and signifies his willingness to regard the creditor as the holder of a partial assignment of the interest of the debtor in the estate, and if thereafter the executor in a final settlement of the estate ignores the creditor and pays to the debtor or for his benefit the whole amount of his legacy which is in excess of the creditor's claim and files in the Probate Court his final account showing such payment, and a decree is entered allowing the account from which no appeal is taken, the creditor may maintain a suit in equity to compel the executor to account to him for the amount covered by the assignment.
A decree of the Probate Court allowing a final account of an executor of a will showing payments by him to a legatee is no bar to a suit in equity by a creditor of the legatee to compel the executor to account to him for the amount of a partial assignment of the legacy of which the executor had notice and to which he assented before he made any payment to the legatee.
BRALEY, J.
While at common law not only the subject matter must be in existence and in the actual or potential possession of the assignor, but partial assignments are not recognized, a court of equity will protect and enforce such assignments by beneficiaries under trusts where the right has not been cut off by the testator, and by heirs and legatees of their contingent interest in funds or property, if made in good faith for a valuable consideration, and not contrary to public policy. Low v. Pew, 108 Mass. 347, 350. Leverett v. Barnwell, 214 Mass. 105. Trull v. Eastman, 3 Met. 121. Jenkins v. Stetson, 9 Allen, 128. Whipple v. Fairchild, 139 Mass. 262. James v. Newton, 142 Mass. 366. Wainwright v. Sawyer, 150 Mass. 168. Sawyer v. Cook, 188 Mass. 163. Hinkle v. Wanzer, 17 How. 353. Delaware County Commissioners v. Diebold Safe Lock Co. 133 U.S. 473. Row v. Dawson, 1 Ves. Sen. 331.
The assignment held by the plaintiff as collateral security for the payment of certain promissory notes of the assignor clearly comes within this principle. It transferred as between the parties a qualified interest commensurate with the amount of the loans and accrued interest in the share of the estate bequeathed to the assignor. James v. Newton, 142 Mass. 366. Richardson v. White, 167 Mass. 58. The bill does not refer to the provisions of the will. It alleges only that the assignor is a "beneficiary" having an unqualified interest or share which we assume to be that of a legatee. The executor in the settlement of the estate would have the right to deal with the legacy as an entirety until informed of the transfer to which it is alleged he consented and expressed his willingness to treat the plaintiff as the assignee.
If for his own protection the plaintiff gave notice of the assignment, the assent or acceptance by the debtor would add nothing to the bank's title. Buttrick Lumber Co. v. Collins, 202 Mass. 413. Kingman v. Perkins, 105 Mass. 111. But as the demurrer admits all the essential allegations, the question referred to but left undecided in James v. Newton, 142 Mass. 366, and Richardson v. White, 167 Mass. 58, whether in the absence of such assent the executor could have ignored the plaintiff and dealt only with the legatee, need not be decided.
It is admitted that the executor, after receiving notice, paid to the assignor or on his account all of his share, which was largely in excess of the plaintiff's demands, and having presented his accounts to the court of probate, the final account showing the distribution has been allowed, and no appeal from the decree has been taken. The demurrant and executor contends that this decree bars relief.
It is immaterial whether the amount coming to the assignor was paid before or after the estate had been settled. The allowance of the final account under R.L.c. 150, §§ 1, 2, which must be presumed to have rested upon the preceding accounts, closed the estate as effectually as if a decree of distribution had been asked for and entered under § 19. Rhines v. Wentworth, 209 Mass. 585, 588, and cases cited. Welch v. Boston, 211 Mass. 178, 182. The court of probate in a decree of distribution deals only with heirs and legatees, without regard to their assignments or pledges. Lenz v. Prescott, 144 Mass. 505, 515. Coram v. Davis, 209 Mass. 227. It is only where the administrator or executor states in his account that payments to heirs or legatees are claimed because of payment to their assignees, that the validity or effect of an assignment can be determined in that court. Palmer v. Whitney, 166 Mass. 306. Robbins v. Horgan, 192 Mass. 443.
The rights of the plaintiff therefore are not foreclosed by the decree. Abbott v. Foote, 146 Mass. 333. Shores v. Hooper, 153 Mass. 228. Minot v. Purrington, 190 Mass. 336, 341. And this court having acquired jurisdiction can determine all questions within the frame of the bill which are necessary to afford the plaintiff full equitable relief. Perry v. Pye, 215 Mass. 403, 413. James v. Newton, 142 Mass. 366. Fourth Street Bank v. Yardley, 165 U.S. 634.
The payment of debts and charges of administration do not appear to have so depleted the personal estate as to require contribution by the legatee, and the entire legacy was due and payable at the date of the final account. Fitch v. Randall, 163 Mass. 381. It having been the duty of the executor to deduct and transmit to the plaintiff a sufficient amount to satisfy its demands, the payments made before stand the same in legal intendment as if made after the decree had been entered. Osborne v. Jordan, 3 Gray, 277. Robbins v. Horgan, 192 Mass. 443, 447. If the legatee had interposed objections or questioned the effect of the assignment, the executor, who was a mere stakeholder, could have compelled the claimants to have litigated their rights on a bill of interpleader. Morse v. Stearns, 131 Mass. 389. Or if the executor had refused to recognize the assignment the plaintiff could have protected its rights by a bill for injunctive relief as in Lenz v. Prescott, 144 Mass. 505.
But on the face of the record, having voluntarily paid after notice and assent the legacy either to the assignor or for his benefit, he must account to the plaintiff for the amount covered by the assignment. Newcomb v. Williams, 9 Met. 525, 535. Buttrick Lumber Co. v. Collins, 202 Mass. 413, 421, 422. Gardiner v. Thorndike, 183 Mass. 81.
We are not called upon to determine whether under Cleaveland v. Draper, 194 Mass. 118, if the payments were mistakenly made in good faith he can petition the court of probate to have the decree revised, and if revision is decreed the assignor can be compelled to refund.
The result is that the demurrer must be overruled.
Decree accordingly.