Blanchard v. Allen

116 Mass. 447 | Mass. | 1875

Gray, C. J.

The plaintiff’s right of action against the defendant as administrator of Harvey Strong is clearly barred by the statute limiting actions against executors and administrators to two years from the time of their giving bond. Gen. Sts. c. 97, §5.

is equally barred against the defendant as administrator of Chester Strong. Neither § 20 of c. 99 of the Gen. Sts., prohibiting the maintenance of an action against the administrator after the estate has been represented insolvent, unless the assets prove more than sufficient to pay all the debts allowed by the commissioners ; nor § 25 of the same chapter, allowing any creditor whose claim has not been presented to the commissioners to bring an action thereon against the administrator, if it is not ascertained at the end of eighteen months after the granting of letters of administration whether the estate is or is not insolvent in fact; suspends the operation of the special statute of limitations. Aiken v. Morse, 104 Mass. 277. Tarbell v. Parker, 106 Mass. 347.

The commissioners were required by law, at the expiration of the time allowed by the Probate Court for the proof of claims before them, to make their return to that court. Gen. Sts. c. 99, § 4. Performance of that duty might be compelled, on motion of any party interested, by the order of the Probate Court which appointed them. If the commissioners did not seasonably make their return, the only remedy of the plaintiff was by application to the Prohate Court for such an order, and, if aggrieved by the decision of that court upon that application, by appeal to this court as the Supreme Court of Probate under the Gen. Sts. c. 117, § 8; and, if the return of the commissioners showed a dis-allowance of his claim as presented to them, by appeal to a court of common law under c. 99, § 8.

Judgment for the defendant.