A surety on an administrator's bond was not aggrieved by nor entitled to appeal from a decree of the Probate Court authorizing the bringing of an action on the bond.
PETITION, filed in the Probate Court for the county of Suffolk on October 14, 1943, for leave to bring an action on an administrator's bond on which the respondent was a surety.
The petition was granted by Wilson, J., and the respondent appealed. A motion to dismiss the appeal was filed in this court.
F. P. Herring, for the respondent.
M. Rosenthal, for the petitioner.
SPALDING, J. The petitioner was authorized by a decree of the Probate Court to bring an action on the bond of the administrator of the estate of Winifred P. Boylan. The surety on the bond appealed. The petitioner has moved that the appeal be dismissed, contending that the decree is not appealable. The motion must be allowed.
With respect to the subject of appeal there is a distinction between a decree granting leave to sue on the bond of an administrator and one denying it. In the case of a refusal an appeal lies. Robbins v. Hayward, 16 Mass. 524 , 528. Jones, appellant, 8 Pick. 121 . Fay v. Rogers, 2 Gray 175 , 177. Richardson v. Oakman, 15 Gray 57 . Putney v. Fletcher, 140 Mass. 596 . Such a decree being in effect final, the petitioner is aggrieved.
However, where leave to sue on the bond is granted that action is not appealable. Jones, appellant, 8 Pick. 121 .
Fay v. Rogers, 2 Gray 175 . Richardson v. Oakman, 15 Gray 57 . Bennett v. Woodman, 116 Mass. 518 . Choate v. Jacobs, 136 Mass. 297 , 298. Putney v. Fletcher, 140 Mass. 596 . In the Bennett case it was said at page 519: "The administratrix has no such interest in the matter of granting leave to bring an action upon her bond, as to give her a right to resist the application therefor, or to be heard upon it. . . . We think it must follow from the same consideration, that, when a suit has been brought upon the bond, the administratrix and her sureties are not entitled to contest the validity of the order of the Probate Court authorizing it." It has been held that no notice need be given to the signers of the bond when leave to sue is applied for. Richardson v. Oakman, 15 Gray 57 . Richardson v. Hazelton, 101 Mass. 108 . Fuller v. Cushman, 170 Mass. 286 , 288. Hellier v. Loring, 242 Mass. 251 , 253. A decree authorizing an action on the bond adjudicates nothing except that the petitioner may sue on it. Such a decree decides nothing with respect to the merits of the case. Richardson v. Oakman, 15 Gray 57 . Fuller v. Cushman, 170 Mass. 286 , 288. McIntire v. Linehan, 178 Mass. 263 , 267. The respondent, therefore, is not aggrieved.
Our attention has been directed to two decisions which it is contended support the right of appeal in this case. Conant v. Kendall, 21 Pick. 36 , 40. Hill v. Arnold, 199 Mass. 109 . Neither of these decisions decides that question.
Since, for the reasons above stated, the case is not properly here, the appeal should be dismissed.