Jones v. Herbert

90 A. 854 | N.H. | 1914

If a creditor wishes to exercise the right given him by sections 2 and 5, chapter 188, Public Statutes, he must act within a reasonable time after he learns of the death of the debtor. Whidden v. Whidden, 67 N.H. 303. The plaintiff attempts to excuse his delay of forty-seven years before beginning this proceeding by saying that he made a contract with Greenleaf shortly after their father's death, by which his brother, in consideration of his agreement not to enforce his claims against their father's estate, agreed to give the plaintiff all his property at his death.

If the plaintiff made this contract he is bound by it, and in so far as he is concerned Solomon's estate is fully administered. George v. Johnson,45 N.H. 456. If the plaintiff failed to enforce his claim against Solomon's estate because he thought he had made this contract, though in fact he had not made it, a different situation is presented; but in that case it does not necessarily follow that he should be permitted to proceed against Solomon's estate. That depends in part on the reasonableness of his conduct in thinking he had made such a contract, in part on his conduct since that time, and in part on the reasonableness of Greenleaf's conduct. It is useless, however, to consider this question further, for the finding of the court is that he has been guilty of laches.

The necessary parties to any proceeding, regardless of its nature (that is, whether it is in rem, at law, or in equity), are those and those only who have an interest in the subject-matter of the suit and whose rights may be concluded by the judgment. Busby v. Littlefield, 31 N.H. 193. Therefore, the test to determine who should be made parties to this proceeding, in which the plaintiff is seeking to impress a trust on the property Greenleaf received from his father, is to inquire who have an interest in or to that property. The answer to this question must be, those and those only who claim through Greenleaf; for he took the property into his possession in 1864, paid his father's debts and legacies, and has since held the property as his own. As no one claiming through Solomon appears to have any interest in or to the property, no ground is perceived upon which it will be held that his administrator is a necessary party to the trust suit. There is no occasion for the appointment of an administrator until in some proceeding it is judicially determined that such administrator must be a party.

Exception overruled.

All concurred.