71 A. 632 | N.H. | 1908
This is an action of assumpsit upon two promissory notes given by the defendant's testator to the plaintiff's testatrix. *136 In the superior court it was agreed by the parties, that if upon a transfer of the case the ruling of the court denying the defendant's motions for a nonsuit and a verdict should be sustained, the plaintiff should have judgment for the amount of the notes ($318.42) and costs, but that if it should be set aside, the defendant should have judgment with costs. Both motions were based upon the same ground, namely, that the plaintiff had failed to prove that the notes were presented to the defendant within one year from the granting of administration upon his testator's estate.
As this is a proceeding at law, and the case was transferred upon the agreement of the parties that if the plaintiff could not maintain her action upon the proof submitted there should be judgment for the defendant, it is clear that the question whether the plaintiff might have relief in equity, under the provisions of section chapter 191, Public Statutes, notwithstanding her failure to prove that the notes were duly presented, is not now before us. The relief afforded under that statute to creditors of a deceased person's estate, who have not prosecuted their claims within the time prescribed by law, is based upon grounds of justice and equity, and want of culpable negligence on the part of the claimant; and proceeding under it calls for the determination of questions of fact not material to this action and not here presented. Webster v. Webster,
In chapter 191 of the Public Statutes, as amended by chapter 2, Laws 1899, it is provided that no action shall be sustained against an administrator if begun within one year after the original grant of administration, nor unless the demand has been exhibited to the administrator and payment has been demanded (s. 1); nor unless the demand was exhibited to the administrator within one year after the original grant of administration, exclusive of the time such administration may have been suspended (s. 2); nor unless the action is begun within two years next after the original grant of administration, exclusive of the time such administration may have been suspended (s. 4); and if the right of action existed in favor of or against the deceased at the time of his death, and survives, an action may be brought by or against the administrator at any time within two years after the original grant of administration (s. 6).
In this case the plaintiff has neither proved that her claim was *137
exhibited to the defendant within the year after original administration was granted upon the estate represented by the defendant, nor that original administration upon that estate has ever been suspended. A mere failure to apply for administration is not a suspension within the meaning of sections 2 and 4 of chapter 191; for until administration is granted the time within which the claim must be presented or the suit begun does not commence to run. The suspension contemplated by these sections is one occasioned by the death, resignation, removal, and the like, of an original administrator upon a deceased debtor's estate, within the period prescribed for the presentation of claims or the bringing of suits, and has no reference to a suspension of administration upon the estate of a deceased creditor. Where there has been no suspension of administration, it has been repeatedly held that an action cannot be maintained against an administrator under section 4, unless the claim upon which the suit is based was exhibited within the year after administration was taken out on the debtor's estate. Mathes v. Jackson,
It is also essential to the maintenance of an action against an executor or administrator under section 6, that section 2 should be complied with; for notwithstanding a right of action may have existed in favor of the creditor or his executor against the debtor at the time of his decease, section 2 provides that a suit cannot be maintained against the debtor's executor or administrator unless the claim is exhibited to him within the year after he has qualified as executor or administrator. In other words, the legal construction of section 2 is that no action can be maintained against the executor or administrator of a deceased debtor's estate if the *138
requirements of that section have not been met, even though a right of action may have existed against the debtor at the time of his decease and survived him. Libby v. Hutchinson,
According to the facts in this case, the plaintiff's testatrix in her lifetime could have presented her claim to the defendant and demanded payment; and if the plaintiff before she took out administration in New Hampshire could not have made a proper demand of payment (P.S., c. 191, s. 18; Cutter v. Emery,
Defendant's exceptions sustained.
All concurred.
