
    Joseph Pope, Appellant, &c. versus Mary S. Jackson.
    Where, upon the petition of the guardian of a minor for license to sell real estate of the ward, such license is granted and a person appointed to make.the sale, the agent is bound to answer upon oath, in the probate court, interrogatories relative to his proceedings under the license.
    Where such agent sold the land and took mortgages for the purchase money in the name of the minor, and after the minor came of age, received from her a power of attorney to discharge the mortgages, it was held, that he was not thereby discharged of his obligation to render an account, and answer such interrogatories in the probate court.
    In December 1829, Mary S. Jackson, the appellee, presented a petition to the judge of probate, in which she stated, that at March term 1825 of the Supreme Court, on the application of her mother, Mary Jackson, as her guardian, (the appellee being then a minor,) Joseph Pope, the appellant, was licensed to sell and convey her interest in certain real estate ; that at a court of probate held in May 1825, Pope filed a bond to the judge of probate in the sum of $7000, with sureties, conditioned that he should well and truly apply the proceeds of such sale for the use of the appellee, and thereof and of his whole proceedings should render upon oath a true and just account to the judge of probate, when and so often as he should be thereunto lawfully required ; that the appellee became of age in September 1827 ; that she has repeatedly asked the appellant for a .statement of the nature, situation and amount of her property in his hands, but that he has never -rendered any account to her guardian or to herself, or to the probate court; and the appellee prayed that a citation might be issued to the appellant, to render a full and true account, on oath, of all his proceedings under the license from the Supreme Court.
    A citation was accordingly issued, and the appellant presented to the judge of probate an account, by which it appeared that the appellee and her brother owned each, by descent from their father, an undivided moiety of certain parcels of land, subject to their mother’s right of dower; that in June 1825, the appellee’s moiety was sold for $3401 *90, her brother at the same time selling his moiety, and the mothef releasing her dower, under an agreement that the proceeds of the land should be so invested that she might receive the income of one third part; that of the $ 3401-90, the sum of $ 316-79 was paid in cash, and for the balance, being $3085-11, certain promissory notes were given, payable in one, two and three years, secured by mortgages in the name of the appellee, — which notes and mortgages were specified in the account; and the appellant charges for incidental expenses, for money deposited in the Hospital Life Insurance Company, in trust for the benefit of the appellee and her mother, and for his services, the sum of $ 345-45.
    The appellee objected to this account, because it did not state the moneys received by the appellant from the purchasers of the land, on their securities, nor the use or disposition made by him of those securities, nor the balance due from him to the appellee ; and she prayed that he might be ordered to restate his account, so as to show those particulars, and that he should answer the following interrogatories : —
    1. What use and disposition were made by you of the original securities taken by you on June 16, 1825, for the purchase money of the land, and which are specified in your account ? And what has become of the same ?
    2. What sums of money have been received by you of the contents of the notes or securities ? By whom were those sums paid to you ? And at what dates particularly were the same paid to you ?
    3. Have you received any and what interest on the notes ? If yea, from whom, how much, and' at what dates ?
    The appellant, not admitting the authority of the appellee t<? propose any interrogatories, and reserving to himself the right of controverting at all times hereafter, the claim set up by the appellee in this behalf, makes answer to the first interrogatory, that the land was sold to the several persons, and for the several amounts, specified in his account; with which both the appellee and her guardian were immediately made acquainted ; that one third of her brother’s moiety, together with $96-74 arising from the appellee’s moiety, was deposited in the Hospital Life Insurance Company, in order that the mother might receive the income thereof during her life, and that the rest-due of the proceeds of the appellee’s moiety was invested in the notes and mortgages, so that when the mother received the income, she might appropriate her proportion of it to her own use ; that the mother requested the appellant to be her agent and attorney for the collection of the interest money which should become due to herself and to her ward; that in 1826, he received the interest, being $ 186, and paid over the same to the mother, and took her receipt therefor, dated June 16, 1826, and that in 1827 he received and paid over another year’s interest to the mother and took her receipt therefor, dated June 20, 1827 ; which receipts he offered to produce ; that in 1828, after the appellee had become of age, she informed him that application had been made to her to settle a mortgage, and as it was inconvenient to her to go to the register’s office, she requested him to attend to the business ; that thereupon he had a power of attorney prepared, conferring on him authority to discharge the mortgages belonging to her ; that this power, after remaining in her hands several days, was delivered to him, duly executed and acknowledged; that in pursuance of the authority so given to him, he discharged two of the mortgages ; that after the investment of the proceeds of the sale had been made in the notes and mortgages, these securities remained under his control with the consent of the guardian, as her agent. And as to the residue of the interrog atories, he declines answering them, inasmuch as they relate to his doings either as the private agent of the guardian, or as the private agent of the appellee since she became of age, and for which neither he nor his bondsmen are answerable in the court of probate, after the proceeds of the sale had been put at interest in the name of the appellee, in pursuance of the order of the Supreme Court, but for which he alone is individually responsible.
    To this answer the appellee made a counter statement, to which the appellant replied ; and the judge of probate, after hearing the parties, decreed that the appellant should more fully answer the interrogatories proposed to him by the appellee, and state what use and disposition he made of the original securities, what sums of money he has received of the contents of the notes or securities, by whom and at what times such sums were paid, and what sums he has received for interest on the notes, of whom and when he received the same ; and that he should charge himself in his account with all the moneys so by him received, with the interest thereon.
    
      March 22d.
    From this decree Pope appealed, assigning the following reasons : — Because, although the appellant, on an examination had in relation to his account, upon his own oath, before the judge of probate, as to the manner of his investing the proceeds of the real estate, fully stated and answered all the particulars in regard to the same, nevertheless the judge required him to answer certain interrogatories relative to his subsequent doings as the private agent of the guardian of the appellee, and as the attorney and agent of the appellee after she came of age, in respect to the mortgages in which the investment had been made, and upon his declining to make answer as to any such subsequent acts and doings, the judge refused to allow and pass his account: — And because the judge ought to have decreed, that the investment was made for the appellee with the knowledge and approbation of her guardian, and was sanctioned by the appellee after she arrived at full age, and that the statements as well as the inquiries made by the appellee upon the interrogatories, were irrelevant to the subject matter of the account.
    Aylwin, for the appellant.
    The first inquiry is, whether the judge of probate had any right to interrogate the appellant at all. The statute of 1783, c. 32, which authorizes this Court to empower executors, administrators.and guardians, upon petition, to sell real estate, provides that the Court may examine the petitioner, on oath, touching the truth of facts set forth in the petition and the circumstances attending the same. This is the sole authority in regard to making sale and citing the administrator, &c. to answer interrogatories. The 5th section contains the provision under which the appellant was appointed to sell the real estate of the appellee, then a minor, but it gives no express authority to the judge of probate to examine the appellant upon interrogatories. The person making the sale is required “ to give bond, with sufficient sureties, to the judge of probate, to observe the rules and directions of law in the sale of real estates by executors or administrators in the first enacting clause herein prescribed, and to account for and make payment of the proceeds of the said sale, agreeable to the rules of law.” The rules of law referred to were such as govern in an action of account. The party was not to account according to the practice of a court of chancery, but according to the rules applicable to a bailiff and receiver. Ecclesiastical courts did not examine on interrogatories, but took the account upon the oath of the accountant, and if the account was false, the party was indicted for perjury. Toller, 492. Our Court have gone further and required executors and administrators to answer interrogatories ; Selectmen of Boston v. Boylston, 4 Mass. R. 322 ; Eveleth v. Crouch, 15 Mass. R. 309 ; but they will not extend the principle to a mere agent appointed to sell land, whose duty is expressly marked out in the provision before recited".
    
      March 30th
    
    But supposing that the authority to examine upon interrogatories extends to the case of such agent, the appellant was not bound to answer questions in relation to acts done by him after the appellee had become of age and had given him a power of attorney, whereby he was made her private agent.
    
      Thacher, contrà,
    cited St. 1786, c. 55, § 2; St. 1783, c. 32, § 2, 5 ; Stearns v. Brown, 1 Pick. 530 ; Saxton v. Chamberlain, 6 Pick. 422 ; Higbee v. Bacon, 7 Pick. 14.
   Per Curiam.

The object of the parties seems to be, to ascertain whether the sureties in the bond given by the appellant to the judge of probate, are responsible for the appellee’s property in the hands of the appellant; for it is of little consequence to the appellant himself whether he is charged as agent under the license to sell, or as attorney of the appellee. The question to be decided is, whether he is bound to answer on oath the interrogatories proposed. Two objections are made by him to the decree of the court of probate ; first, that from his relation to the estate sold and to the probate court, he is not bound to answer on oath ; secondly, that he received a power of attorney from the appellee after she became of age, and so that he is bound to account as attorney and not by virtue of the bond.

As tc the first point, the Court are clear that the appellant is bound to answer on oath to pertinent interrogatories propoi ed *n ^le court of probate. And this arises, not from any express clause in the statute to this effect, but from the general provision that he is to account on oath. The obligation to account necessarily involves considerable details, in respect to dates, sums, persons and other circumstances ; and if the account, as first rendered on oath by the accountant, is defective in these particulars, specific questions may be proposed by any one entitled to the benefit of the account, for the purpose of supplying such defects, and such questions the accountant is bound to answer. Such has been the course of practice in this Commonwealth, in relation to the cases of executors, administrators and guardians. An agent to sell the estate of a minor, under a special license, stands in a similar fiduciary relation. He is to a certain extent a guardian, exercising in behalf of the minor similar powers to those confided to the general guardian.

By Si. 1783, c. 32, § 5, it is provided, that when it shall appear that it will be for the benefit of a minor, or person non compos, that his real estate shall be sold, and the proceeds put out on interest, the court may appoint some suitable person to make the sale, such person first to give bond with sureties to the judge of probate, to observe the rules and directions of law, in the sale of estates by executors or administrators, and to account for and make payment of the proceeds of the sale, agreeable to the rules of law.

This statute prescribes the rule of duty to such agent; in making the sale, advertising, taking the requisite oath, and other preparatory measures, he is to follow the rules prescribed in the same statute to administrators. And after the sale, he is to account for and pay over the proceeds, according to the rules of law. He is therefore to account with the judge of probate, and the same rules which regulate the mode of conducting other probate accounts, must apply to these. Being liable to account on oath, he is bound to answer interrogatories pertinent to such account.

The St. 1786, c. 55, after directing the mode of proceeding upon bonds of administrators, further directs that the like judgment and proceedings, (so far as they can with propriety take place,), are to be had upon bonds of executors, guardians tc and others,” given to the judges of probate in their said capacity. Here the term “ others ” applies precisely to agents, licensed pursuant to statute, to sell the real estate of minors and others, and we are not aware that it can apply to any others, though perhaps it may. It strongly confirms the position, that the agent is to account before the judge of probate, n the same manner as an administrator.

This statute directs that the like proceedings shall be had, so far as applicable, as against an administrator. Conformably to this direction, a suit may be brought on the probate bond, in the name of the judge of probate, for the use and benefit of the minor, who shall have a special judgment thereon to his .own use, the writ being properly indorsed for that purpose. The case of a minor, in relation to such agent, is nearest analogous to that of an heir, in relation to an administrator. The statute directs, that when an heir has the suit brought for his part of the personal estate, he must exhibit a copy of the decree of the probate court, ascertaining its quantum, and make it appear that he has made demand thereof, of the administrator.

Such a decree necessarily implies that the administration account has been settled, because, till such accounting, the balance to be distributed could not be determined, nor, of course, the quantum ascertained.

So we think in case of an agent to sell the estate of a minor, pursuant to the statute, the account is first to be rendered and settled, all just allowances made, and the balance struck, and then a demand is to be made, and if the balance is not paid, proceedings may be had on the bond, as in case of the bond of an administrator.

The result is, that such an agent is an officer of the law, bound to account with the judge of probate on oath, and bound to answer all pertinent interrogatories touching the particulars of such account. Believing that the interrogatories set forth were pertinent, we are of opinion that the appellant was bound to answer them, and that the decree of the judge of probate in that respect was correct.

As to the power of attorney, the Court cannot know, till the proposed questions are answered, whether the appellant has d°ne t^e several acts inquired of, under that power, or as an agent under the license of the Court. He must answer the specific interrogatories which have come up with the decree appealed from.

Decree affirmed 
      
       See St. 1838, c. 190.
     