111 A. 76 | N.H. | 1920
This is an action of tort for personal injuries; the plaintiff died May 23, 1918, during the May term; the second term thereafter was the January term, 1919, which ended May 5, 1919. No person having appeared to prosecute the suit, the court, at the May term, 1919, granted the defendant's motion to abate the action. Such action is ordinarily required by the statute of the state. The administrator has two full terms in which to appear and assume prosecution of the suit. Fairgraves v. Stark Mills,
Although the right of the executor of the will of Agnes Halle to appear and prosecute the suit is barred by the statute, it does not necessarily follow that the right of those interested in the estate is also barred. Under P.S., c. 191, s. 18, any person interested in an estate may bring an action which the executor declines to prosecute. This statute has been given a liberal interpretation, so as to fully protect the rights of those interested in the estate. Merrill v. Woodbury,
The husband was interested in this suit. The terms of the will do not appear, but if he takes nothing thereby he has the right to his distributive share of her estate under the statute. Laws 1915, c. 31, s. 4. That he would have the right to appear and prosecute the suit within the statutory period if the executor declined to do so *421 is not open to question. The fact that his proceeding might have to be in the name of the executor (Merrill v. Woodbury, supra) does not alter the essential fact. The right to be vindicated is one in which he is interested and which he can assert if the executor declines to do so.
The question here is whether this right to appear and prosecute a pending suit, which would abate but for such appearance, is covered by the federal statute which in terms applies to "the bringing of any action." There is no other provision in the federal act which would afford any relief to the person so situated. The general purpose of that statute is declared to be to extend protection to persons in the military service to prevent prejudice or injury to their civil rights during their term of service. Ib. s. 100. In view of this declared object, it is reasonable to conclude that the intent was to include the procedure here involved. It follows that the husband had two full terms of court after the death of his wife, and exclusive of the time he was in the service, in which to appear as an individual and assume the prosecution of this suit.
The suggestion is made that if the husband owns only a part interest in the estate the result of allowing him to appear and prosecute the suit would be to compel a complex computation to determine his ultimate net interest therein so that recovery should be limited accordingly. The question does not now arise, except incidentally and as a collateral test for the correctness of the conclusion that he can maintain the action. If the rule suggested is sound it does not present an insuperable obstacle. In any event his share would have to be determined before distribution, and if that share is all that can be recovered, and is in fact less than the whole, judgment on the verdict can be postponed until the amount to which he is entitled is determined.
The transferred case does not state what appearances, if any, were entered. The defendant was the moving party, seeking to have the action dismissed, and the record does not show who opposed the motion. The order granting the motion to dismiss the suit was apparently based upon a ruling that it was too late for an appearance by anyone. The exception to this ruling was taken by the executor. In the absence of an appearance by the husband as an individual, the exception as stated cannot prevail. The primary right of the executor to appear is barred. If there was an appearance by the husband individually, the question might arise whether the executor could ratify and adopt such appearance and proceed with *422 the suit, or whether the husband's right to use the executor's name might not justify an exception as executor. But apparently the whole proceeding in the superior court was had for the purpose of determining whether all right to maintain the suit was barred by the statute. If, upon the return of the case to the superior court, this is found to be the fact, the order should be reversed. The husband, as an individual, had a right to appear and prosecute the suit. But if the only attempt at an appearance was by the executor in his official capacity, it follows that the order was correct and the action must be dismissed.
Case discharged.
All concurred.