Opinion
No. 3597.
Decided November 6, 1946.
A petition for declaratory judgment will not be entertained when the plaintiff has a plain, adequate and exclusive remedy at law. An action at law in accordance with the specific statutory provisions (R. L., c. 364, ss. 6-8) is the only available remedy to determine liability upon a probate bond.
PETITION for declaratory judgment brought at the request of Howard B. Lane, administrator with will annexed of the estate of John Tonry, to determine the liability of the defendant who, on May 1, 1933, assumed liability for losses arising or caused by acts of Brendon J. Keenan who was appointed executor of the will of John Tonry in Cheshire county March 25, 1927. Keenan was also appointed ancillary administrator of the Tonry estate in Middlesex county, Massachusetts. The National Surety Company was the original bonding company in both instances, having filed bonds of $15,000 in Cheshire county and $5,000 in Middlesex county. The National Surety Company went into receivership in 1933, and the National Surety Corporation took over its bond in the Cheshire county Tonry estate by filing a certificate to that effect, but did not do so in Middlesex county.
Keenan was removed as domiciliary executor in 1941 and Lane was then appointed administrator with will annexed. In 1942 Keenan filed his account as ancillary administrator in Massachusetts, and upon hearing the Probate Court for Middlesex county ordered him to account to Lane as administrator, w. w. a. in the sum of $17,100. Keenan never complied with the order, and he being judgment proof, Lane applied to the Probate Court in Cheshire county for an order to bring suit against the defendant in the name of the Judge of Probate for said county, which order was granted.
The petition for declaratory judgment further states that the petition is also brought at the request of Sarah J. Tonry, the principal legatee under the will, who obtained a decree from the Middlesex county Probate Court ordering Keenan to pay to her the amount of her legacy and interest amounting to $9,389.19 as of March 1, 1944.
The prayer is that the court determine whether the defendant is liable under the bond filed in Cheshire county because of Keenan's failure to account here in accordance with the Middlesex Probate Court order, and also whether the defendant is liable under said bond to pay to Sarah Tonry her legacy with interest as determined by the Middlesex Probate Court.
Upon hearing, Duncan, J., dismissed the petition on the ground petitioner had a complete and adequate remedy at law, and plaintiff excepted. Transferred on plaintiff's bill of exceptions.
Howard B. Lane, Samuel A. Margolis and Maurice Palais of Massachusetts (by brief), for the plaintiff.
Sulloway, Piper, Jones, Hollis Godfrey (by brief), for the defendant.
The petition cannot be entertained. Plaintiffs in interest have a plain adequate remedy at law. The statute, R. L., c. 364, s. 6, provides as follows: "Any person interested in a bond given to a judge may apply to the judge for an order for suit thereof, setting forth the claim intended to be recovered in such suit; and the judge may make the order, upon the applicant giving bond, with sufficient sureties, to pay the costs which may be adjudged against him." Section 7 provides: "The name and residence of every person at whose request the order is made and suit instituted shall be endorsed on the writ before the service thereof, with a brief statement of his claim." Section 8: "In such suit the defendant shall be called to answer to the judge of probate" for the county. Plaintiff Lane, in his capacity as administrator, w. w. a. of the estate of John Tonry, complied with the statute and applied to the Judge of Probate for the county of Cheshire to bring suit against the defendant bonding company. The application states "there is a deficiency of seventeen thousand one hundred dollars ($17,100) in said estate due to illegal acts of the said Brendon J. Keenan." This of course means the $17,100 ordered to be paid to Lane by Keenan as ancillary administrator in Massachusetts, in pursuance to the decree of the Judge of Probate in Middlesex county of that state. It is the only claim alleged in the application granted by the Judge of Probate for Cheshire county. Thereupon Lane, in conjunction with Sarah J. Tonry, a legatee, brought this petition for declaratory judgment.
From the above statutory provisions it appears conclusively that the only action that can be brought against the bond, after permission to do so has been granted by the Judge of Probate, is by a "writ," to be endorsed by the party for whose benefit it is sued out. This means an action at law and nothing else.
"Suits upon probate bonds can be maintained only by reason of, and in accordance with statutory provisions." Judge of Probate v. Adams, 49 N.H. 150, 152. The "statute (P. L., c. 310, ss. 6 et seq. [now R. L., c. 364] prescribes the procedure for such suit." Lisbon Savings Bank c. Co. v. Moulton's Estate, 91 N.H. 477, 479. See also, Judge of Probate v. Tillotson a., 6 N.H. 292; Prescott v. Farmer, 59 N.H. 90.
Plaintiff Lane has a plain and adequate remedy at law. The issues presented here are the same as those to be tried out in an action at law against the bond (the only permission granted to him). This court has repeatedly announced this proposition of law, and where there is another plain, and adequate remedy at law, a petition for a declaratory judgment cannot be invoked. Lisbon District v. Lisbon, 85 N.H. 173, 174, and cases cited; Young v. Bridges, 86 N.H. 135, 136; Gitsis v. Thornton, 91 N.H. 192, 193, and cases cited; Trefethen v. Amazeen, 93 N.H. 110, 112, and cases cited.
"Declaratory judgment statutes do not operate to repeal by implication or otherwise relevant and not inconsistent provisions of codes or statutes." Anderson, Declaratory Judgments, p. 17, s. 6. "The court will refuse a declaration . . . where a special statutory remedy has been provided." Borchard, Declaratory Judgments, p. 109.
The other plaintiff in interest, Sarah J. Tonry, principal legatee, is improperly joined in this proceeding. She has not been given authority to proceed in the name of the Judge of Probate. No opinion is expressed as to whether she can be given such authority.
Petition dismissed.
All concurred.