Action by Harold E. Cook, Judge of Pro-account in the probate court where administrabate, against Ida S. C. Titcomb. Judgment for plaintiff.

Argued before SAVAGE, C. J., and CORNISH, KING, HALEY, HANSON, and PHILBROOK, JJ.

George W. Heselton, of Gardiner, and Herbert E. Foster, of Winthrop, for plaintiff. Andrews & Nelson, of Augusta, for defendant.

tion is granted on the estate, or if not so cited, within six years from the time of the breach of his bond, unless such breach is fraudulently concealed by the administrator or executor, from the heirs, legatees or persons pecuniarily interested, who are parties to the suit, and in such case within three years from the time such breach is discovered."

The exact point urged in defense is that there was not, and could not be, any breach of the bond, after the death of the executor, for which the sureties on his official bond

KING, J. This case is reported to the law can be held liable. There is no merit, we court on an agreed statement. think, in that contention.

Nancy W. Cushman, a resident of Augusta, Me., died testate March 20, 1892. Her will was proved and allowed April 25, 1892, and Lendall Titcomb was appointed and qualified executor, giving bond with the defendant as one of the sureties thereon. The testatrix gave her property, after the payment of her debts, funeral expenses, and expenses of administration, to her sister Mary Waugh in trust, she to have the income thereof and such portions of the principal as should be necessary for her comfortable support during life, and at her death any portion of the estate remaining unexpended was to be distributed by the executor to certain persons named in the will.

The sureties on the official bond of an executor undertake and guarantee that their principal shall faithfully discharge the duties of his trust, and shall administer the estate committed to him according to law and the will of the deceased. The bond is given to the judge of probate in his official capacity, and at his death passes to his successor in office. It is given for the benefit of the estate, and for all persons who may be interested therein. The condition of the bond, though expressed briefly and in general terms, from its very generality embraces a great variety of acts, to continue for considerable time. Such bond is obviously a continuing obligation, of which there may be various and successive breaches. Loring v. Kendall, 1 Gray (Mass.) 305, 312. When an executor has taken into his control property of the estate, the sureties on his official bond stand sponsors for the lawful administration of that property by their principal, and for a just and true account thereof to the judge of probate having jurisdiction of the estate. If the executor dies before he has fully discharged his trust, his sureties continue re

Lendall Titcomb, the executor, took possession of the estate and retained the management of it during the lifetime of Mary Waugh, who died April 22, 1908. He died the following day, April 23, 1908, never having filed an inventory or rendered any account in said estate. Ida S. C. Titcomb, his wife, is his sole beneficiary and the executrix of his will. As such executrix, on June 11, 1909, she filed in the probate court having jurisdiction of the Cushman estate her testa-sponsible for a just and true accounting of tor's administration account in that estate, showing a balance due the estate of $2,619.83. The allowance of that account was contested, and after hearings thereon, the judge of probate, on January 25, 1915, decreed that the balance due from the estate of said Lendall Titcomb to the Cushman estate is $6,643.27, from which decree no appeal was taken. On March 20, 1915, the administrator de bonis non of the Cushman estate demanded of Ida S. C. Titcomb, executrix, payment of the amount so decreed to be due from the Lendall Titcomb estate to the Cushman estate, which demand was refused.

Thereupon the judge of probate authorized this action to be brought in his name against said Ida S. C. Titcomb, as the surviving sure ty upon the official bond given by Lendall Titcomb as such executor.

the property which their principal received as executor, and for the payment and turning over to the estate of any balance of that property not found to have been lawfully disposed of by him during his lifetime. That such responsibility rests upon the sureties on the official bond of an executor or administrator seems beyond dispute. We know of no authority to the contrary. It has always been so recognized.

[3] In the case at bar it appears that the executor did not return an inventory of the estate, nor file an account, within the times required by law. But those breaches of his bond are not relied upon in this action. They probably occasioned the estate but nominal damages, and they happened more than 20 years before this action was brought. It does not appear that the property received by the executor was not administered according to the will, during the lifetime of Mary Waugh, the cestui que trust. No claim is made for a breach of the bond in that respect. Nor could it be reasonably claimed that the ex"Every action against sureties on an admin-ecutor committed a breach of his bond be istrator's or executor's bond, must be commenced within six years after such administrator or executor has been cited to appear to settle his

[1, 2] It is urged in defense that, inasmuch as the action was not commenced within 6 years after the death of Lendall Titcomb it is barred by the provisions of section 8, c. 74, R. S., which reads:

cause he did not distribute the balance of the estate according to the will after the death

of Mary Waugh, for he died the following | comb would have been bound to pay it if day. alive. On her refusal to make such payment [4] But at the death of Lendall Titcomb | there was a breach of the official bond of there was in his hands a balance of the Cush- Lendall Titcomb, for which breach his sureman estate, the amount of which could be ties thereon became liable, just the same as authoritatively determined only by the judge there would have been a breach of his bond, of probate after an examination and adjust- for which his sureties thereon would have bement of the administration account of the de- come liable, had the decree of the judge of ceased executor. Until that balance was as- probate been made in the lifetime of Lendall certained the liability of the sureties on the Titcomb and he had refused to pay the executor's official bond, if any, could not be amount so decreed. determined. The executrix of Lendall Titcomb's will presented to the probate court for examination and allowance such an account. She had the right to do that, and she was the proper party to do it. In Nowell v. Nowell, 2 Greenl. (2 Me.) 75, the court said:

"For the due performance of all the duties and responsibilities of such administrator, he, in his lifetime, is personally bound, and his representative is answerable upon his decease; it therefore becomes necessarily incident to the power, duty, and authority of the representative to be permitted to show that these duties and responsibilities have been faithfully discharged. To refuse him this privilege would be to hold him accountable for the doings of the party he represents and, at the same time, to withhold from him the means of showing that such party had conducted with the most perfect fidelity."

This action against the defendant as the surviving surety on Lendall Titcomb's official bond as executor having been commenced almost immediately after the breach of the bond relied upon and proved, as we have indicated, it is apparent that the alleged defense of the statute of limitation does not apply, and must be overruled.

The defendant's situation in this action is unusual. She is the personal representative of Lendall Titcomb, the principal in the bond, and as such personal representative it was her duty to pay to the Cushman estate the amount decreed by the judge of probate. She is also the surviving surety on the bond, and as such she is liable for the payment of the amount decreed, because of the default of the And, moreover, [5] In the presenting and settlement of an Titcomb estate to pay it. executor's administration account by his per- she is the sole beneficiary of the Titcomb esShe had, therefore, the fullest right sonal representative, the sureties on the of- tate. ficial bond of the deceased executor are fully and opportunity to be, and undoubtedly was, and effectually represented in the probate personally represented in the proceedings in court by the personal representative of their the probate court under which the decree was principal. And they cannot be heard to ques-made, fixing the amount due from the Lention the validity of a decree, regularly passed by the probate court, against their principal in matters covered by the bond. Judge of Probate v. Quimby, 89 Me. 574, 36 Atl. 1049. The contingency that their principal being joint and several, she is suable thereon may die before his trust is fully discharged, alone. There is no suggestion of any inleaving funds in his hands belonging to the firmity or irregularity in bringing this acestate he represented, which his personal reption against her as surety. It was properly resentative may neglect and refuse to pay over to that estate on demand, is a continuing liability, assumed by the sureties on the official bond of an executor or administrator. And when such a contingency arises, a breach of the bond then occurs for which the sureties become liable.

In the instant case the judge of probate, after hearings in the matter of settlement of the administration account of Lendall Titcomb as the executor of the Cushman will, determined and decreed that there was due the Cushman estate from the Titcomb estate

$6,643.27. It was then the duty of the executrix of the will of Lendall Titcomb, as his personal representative, to pay that sum to the administrator de bonis non of the Cushman estate. She lawfully represented Lendall Titcomb in the settlement of his administration account in the Cushman estate; and she was just as much bound to pay the amount found due the Cushman estate in the

dall Titcomb estate to the Cushman estate, and for the payment of which she was responsible as surety.

[6, 7] Her obligation as surety on the bond

brought in the name of the judge of probate for the benefit of the Cushman estate and all persons interested therein.

A breach of the bond in suit having been shown for which the defendant, Ida S. C. Titcomb, as surety on said bond, is liable, judgment must be entered in this action against her for the penalty of the bond. R. S. c. 74, § 9. Lewis v. Warren, 49 Me. 322.

ment for so much only of the penalty of said But execution is to issue under said judgbond as equals the amount which the court finds to be due the estate of Nancy W. Cushman from the estate of Lendall Titcomb, with interest thereon and costs; and the court

finds that amount to be the same amount which the judge of probate found to be due from the estate of Lendall Titcomb to the estate of Nancy W. Cushman, to wit, the sum of $6,643.27, to which is to be added interest thereon from March 20, 1915, the time when payment thereof was demanded of said Ida S. C. Titcomb, and costs.

Charles F. Cherry. In connection with his | the sale were deferred upon the theory that, acquisition of a record title to the property if the occupant of the property availed herfor which he paid about $325 to the agent of self of the right to buy it upon the terms and the grantor, Mr. Clark effected an agree- within the time stipulated, the consummation ment with Elmira Gould to give him posses- of the sale to the original purchaser under sion in consideration of the payment to her the decree would be unnecessary, and that of a sum approximating $575. The amount the transaction would be closed upon the bathus agreed upon being duly paid, the occu- sis of the price and with the purchaser conpants of the premises thereupon moved away, templated by the option agreement. It seems and Mr. Clark delivered possession to his reasonably certain that, if the option, to grantee, who relinquished it to his successor which the trustee was himself a party, had in the title. been actually exercised, the further proceedings in the equity cause, and particularly the auditor's report, would have given some indication of that fact. The audit which was not filed until January, 1901, would surely not have shown a deficiency in the application of the proceeds of sale to the indebtedness ascertained by the decree if the trustee creditor had received under the terms of the option agreement the purchase price for which it provided and which was the full and precise amount of the debt and costs. The theory that the option should be presumed to have been exercised is plainly untenable.

[1] The present suit in equity was instituted by the heirs at law of Perry E. Smith, including Elmira Gould, and its object is to have them decreed to be the owners in fee simple of the land in question and entitled to its possession, and to have the title conveyed to them by a trustee to be appointed for that purpose. No question has been raised as to the jurisdiction of the court to entertain the proceeding. The main theory of the suit is that, in view of the long-continued occupancy of the property by Ann M. Smith and her children after the termination of the period fixed in the option agreement, the presumption is that the privilege of purchase thereby given was exercised according to its terms. There has been no evidence offered tending to show affirmatively that the option was in reality availed of, but an inference to that effect is sought to be drawn solely from the circumstances that the pre-existing tenure of the person to whom the option was given remained so long undisturbed. This is not a sufficient ground upon which to raise such a presumption. The mere fact that the purchaser under the decree refrained for 13 years from an active assertion of his ownership, certainly could not, in the absence of competent proof on the subject, justify the court in founding a formal judgment adverse to his title upon the assumption that the conditions of the option given the occupant of the property to buy it at a stipulated price had been duly performed. Such a conclusion appears especially unwarranted when we consider the course of the proceeding under which the land was sold and to which the option agreement was incidental. It has been noted that the agreement was signed on the very day of the sale under the decree; that the purchase price fixed by the option was the amount of the indebtedness and costs adjudged to be chargeable against the property, and was to be paid to the party for whose benefit the decree was passed; that the sale made under the decree was not formally reported to the court until the option period was nearing its end, and was not ratified until the day after that period had expired; and that the audit accounted for the exact sum for which the land was reported to have been sold. These circumstances tend very strongly to show that the option was not, in fact, exercised. The natural in

[2] It is further urged on behalf of the plaintiffs that, the land in controversy having been in the exclusive and continuous occupancy of themselves, and of their parents, under whom they claim as heirs at law, for more than 20 years, they have acquired a valid title by adverse possession. To dispose of this contention it is only necessary to refer to the fact that all the persons interested in the property were made parties to the creditors' suit instituted in 1899. The decree and ratified sale in that proceeding were effectual and conclusive in transferring to the purchaser all their right, title, and interest. The subsequent possession of the property by some of the parties to that cause has, of course, not been of such duration as to imply a title by prescription. While no deed appears of record from the trustee to the purchaser under the decree, it is clear that the plaintiffs have derived no advantage from that omission. The ratification of the sale invested the purchaser with the substantial ownership of the land (Lannay v. Wilson, 30 Md. 550), and as against the title granted by his deed, and the actual possession obtained for value by his grantee, the plaintiffs have no subsisting interest upon which the relief they seek in this suit can be predicated.

[3] The trustee's report of sale, as transcribed in the record, gives the name of the purchaser as Robert W. Heunt, while the deed to Mr. Clark in February, 1913, was executed by Robert W. Henut. This discrepancy, when coupled with the inability of plaintiff's counsel, as shown by the testimony, to locate any person having such a name in either form, though diligent inquiries were conducted to that end, has been made the