Fellows v. Smith, 130 Mass. 378

Fellows v. Smith

130 Mass. 378 | Mass. | 1881

Soule, J.

As the plaintiff took only the title to the chattels in question which his testator had, the admissions of the testator that they were not his were admissible evidence for the defendant. On the other hand, statements of the testator that he was the owner of the chattels were inadmissible as evidence for the plaintiff, on the familiar principle that one cannot introduce his own declarations in his favor as evidence of title in himself to either real or personal estate.

The plaintiff having been appointed and qualified as administrator more than two years before the trial of the action, and it not appearing that the estate had been represented to the Probate Court to be insolvent, nor that any creditor had begun any suit against the administrator, the evidence offered to prove that the estate was insolvent in 1877, nearly three years before, was properly rejected. The statute of limitations had run in favor of the plaintiff. Gen. Sts. c. 97, § 5. No suit had been instituted against him. If suit should be thereafter begun, the *380statute would be a perfect defence, and one which he could not waive at the expense of the estate. Ames v. Jackson, 115 Mass. 508. No creditor, therefore, was interested in the estate, or in the result of this action. A recovery by the plaintiff would enure to the benefit of the next of kin of the testator only, or the legatees under his will. As against these, a gift from the testator to his wife, of articles retained by her after his death, would be valid. McCluskey v. Provident Institution for Savings, 103 Mass. 300. Towle v. Towle, 114 Mass. 167. It follows that such of the articles in controversy as the defendant received by gift from her husband she is entitled to hold. -As to those which she has under the ante-nuptial contract, the plaintiff does not insist that he can recover. The rulings of the justice of the Superior Court were correct.

Exceptions overruled.