128 Mass. 272 | Mass. | 1880
The statutes of the Commonwealth concerning the payment of the debts and liabilities of deceased persons are framed with the objects, 1st, of securing a prompt settlement and distribution of the estate, and, 2d, so far as can be, of affording
This ease depends upon the provisions by which “ a creditor of the deceased, whose right of action does not accrue within two years after the giving of the administration bond, may present his claim to the Probate Court at any time before the estate is fully administered; and if, on examination thereof, it appears to the court that the same is justly due from the estate,” the court shall order the executor or administrator to retain in his hands sufficient to satisfy the same, unless a sufficient bond “ for the payment of the demand in case the same is proved to be due,” is offered and given by a person interested in the estate. Such a claim is not conclusively established by the decision of the Probate Court, but must be “ proved to be due in an action commenced by the claimant within one year after the same becomes payable,” or, if an appeal is taken from the decision of the Probate Court, then within one year after a final determination of that appeal, against the executor or administrator, or against the person giving the bond. Gen. Sts. o. 97, §§ 8-11. St. 1871, o. 238.
These provisions in terms cover every claim, the right of action upon which does not accrue within the period of the special statute of limitations, and which now appears to be “ justly due from the estate,” and include every debt arising out of a contract of the deceased which becomes “ justly due ” before the estate is settled, even if it was neither debitum nor solvendu/m, within the two years.
The claim of the petitioner is upon the bond given on May 2, 1876, by the respondents, as administrators with the will annexed )f Lorenzo JST. Granger, and arises thus: The former trustees unler the will of Cotton Smith gave bond in 1861 for the performmce of their trust, with Granger as a surety, and in February 1879 were removed from that trust. On March 22,1879, the
The cases cited by the respondents are in no wise inconsistent with this view. In none of them had any application been made to the Probate Court to set aside assets; and most of them related either to the effect of the special statute of limitations, or else to the liability of heirs and devisees, who can only be sued after the estate has been settled and upon debts which could not have been sued for against the executor or administrator. Gen. Sts. c. 101, §§ 31 ¿* seq. Hall v. Bumstead, 20 Pick. 2.
In Spelman v. Talbot, 123 Mass. 489, the point adjudged was that the claim of one joint debtor against the administrators of another for contribution to a sum paid by the plaintiffs after the time of limitation of actions against the administrators had expired, and which therefore did not come into existence until after that time, was not within the equitable exception to that statute created by the St. of 1861, a. 174, § 2; there had been no application to the. Probate Court to order assets to be retained or a bond to be given, and therefore, as previously decided in Bacon v. Pomeroy, 104 Mass. 577, no action could have been maintained under the Gen. Sts. e. 97, § 10; and the dictum that the possible liability of the plaintiffs would not give them a contingent claim against the estate, upon which they could have obtained such an order from the Probate Court, was evidently based upon the fact, that at the time spoken of it was
An action at law upon the bond of the trustees, or upon the bond of the administrators of the surety on the first bond, must indeed have been brought in the name of the judge of probate as the obligee therein, and not in the name of the new trustee; but as the new trustee is the person entitled to bring such an action in the name of the judge of probate, he is the proper person to present a petition under the Gen. Sts. c. .97, § 8; for it would be an anomaly to require the judge of probate, as the obligee in the bond, to apply to himself in his judicial capacity for an order under this statute.
The question whether two trustees should have been appointed instead of one is not brought directly before us, as it would be by appeal from the decree of the Probate Court appointing a single trustee. Even if that court ought to have appointed an additional trustee, it is clear that the property vested in the trustee appointed, and that he has the right to prosecute all necessary suits to recover the same. Greene v. Borland, 4 Met. 330. Dixon v. Homer, 12 Cush. 41.
The result is that the decree of the Probate Court dismissing the petition must be reversed, and the case remitted to that court for Further proceedings.
