158 Mass. 418 | Mass. | 1893
This is a bill in equity, brought under Pub. Sts. c. 136, § 26 et seq., by the executor of the will of Caroline A. Wood against the heirs and next of kin of Charles Wood, to charge them on a contract made by Charles Wood in respect of the sum paid out in the suit of Wood v. Bullard, 151 Mass. 324, 335. There is no question that the sum which the present plaintiff was compelled to pay in that suit was a claim against which Charles Wood covenanted to protect Caroline. The main questions are whether this proceeding is open to the plaintiff, and, if it is, whether the defendants are entitled to go to trial on the sanity of Charles Wood at the time he made the agreement, There is also a question of the measure of damages.
It is not argued seriously that the present claim against the heirs was barred by the running of the two years’ statute. The covenant to protect Caroline Wood was a distinct obligation, (Badger v. Titcomb, 15 Pick. 409, 413,) which was not broken until long after the two years had elapsed. Valentine v. Wheeler, 122 Mass. 566, 568. Aberdeen v. Blackmar, 6 Hill, (N. Y.) 324. But it is said that, under Pub. Sts. c. 136, § 13, the plaintiff might have presented his claim to the Probate Court, and might have obtained an order that Charles Wood’s administrators should retain assets to satisfy it, and that a neglect to take that proceeding is a bar to a suit against the heirs under § 26 et seq. Pratt v. Lamson, 128 Mass. 528. In Ames v. Ames, 128 Mass. 277, it was held that the Gen. Sts. c. 97, § 8, did not apply to a contract like this while it still was uncertain whether anything ever would be due under it, and if that case applies to the corresponding section of the Public Statutes it governs this. But it is said that the amendment incorporated from St. 1879,
But the statute must be construed reasonably. It cannot have been intended to enable any one, who has an outstanding contract made by a deceased person, to suspend the. settlement of the estate indefinitely, without regard to the probability of anything becoming due upon the contract, and when it still is impossible for the Probate Court to form any estimate of what amount should be retained as “ sufficient to satisfy the same ” in the words of the statute. The meaning of the word “ creditor,” retained from the General Statutes, has not been changed so far as that. Furthermore, although we do not rely on this circumstance as sufficient in itself, if the plaintiff might have applied to the Probate Court, still, at the earliest date when he had the slightest reason for doing so, his claim could not have been provided for in full, and the amount to be reserved, if any, was a pure matter of speculation, and remained so until the estate was fully administered. See Wood v. Bullard, 151 Mass. 324, 332. We are of opinion that the plaintiff was not barred of his present proceeding by his failure to apply under §. 13. See Clark v. Holbrook, 146 Mass. 366, 368.
The next question is whether the defendants have a right to try the sanity of Charles Wood. It is found as a fact that his administrators ratified his agreement, if administrators can ratify a reasonable agreement of an insane intestate. This means, of course, that they effectually ratified, subject to the question of law mentioned. The grounds of the finding are not stated, and we cannot inquire whether they had sufficient knowledge, as we are asked to do. There is no doubt, and it is not disputed, that administrators can ratify such a contract. For that purpose they represent the person of their intestate restored to sanity. Wood v. Bullard, 151 Mass. 324, 329.
But it is said that, although the ratification estops the administrators, it is of no effect against the heirs. Ratification is not estoppel, but it is election, a different conception. Metcalf v. Williams, 144 Mass. 452, 454. When it operates, it operates not against the person ratifying, but on the contract, making it
The last point argued for the defendants is, that at all events the measure of damages is the $7,000 paid by Caroline Wood to Charles Wood for his covenant. Her earlier contract was that she would not “ make any testamentary disposition of the trust fund ” left by her husband, “ and remaining at my decease,”
Decree for plaintiff.