231 Mass. 422 | Mass. | 1918
This action was heard by a judge of the Superior Court, sitting without a jury, who ruled that it could not be maintained, and found for the defendant. The plaintiff excepted to certain rulings and refusals to rule, and also to the refusal of the judge to pass specifically upon certain requests for rulings. The failure of the presiding judge to rule upon the requests last above referred to is equivalent to a refusal to make such rulings, and is to be so treated. The case is before us upon the plaintiff’s exceptions, an agreed statement of facts, and a “memorandum” filed by the judge.
On September 21, 1909,' Orlando F. DeShon was appointed administrator of the estate of Charles Henry Fowler and duly qualified as such administrator. The plaintiff had a claim against the estate for the funeral expense's, and on September 16, 1911,
On November 18, 1916, the plaintiff filed a motion in the Municipal Court to amend the writ and declaration by substituting the name of the defendant as administrator de bonis non fat the name Orlando F. DeShon, administrator, which motion was allowed, and thereafter the defendant was summoned in to defend the action. He appeared and filed an answer setting up among other defences the special statute of limitations. R. L. c. 141, § 17. The allowance of the amendment was within the discretion of the Municipal Court, and we do not understand the defendant to contend to the contrary. R. L. c. 173, §§ 48, 121. Hutchinson v. Tucker, 124 Mass. 240.
R, L. c. 141, § 17, (now amended by St. 1914, c. 699, § 7,) is applicable to the case at bar. It provides that if a new administrator is appointed he “ shall be liable to the action of a creditor for two years after he has given bond for the performance
While the allowance of the amendment summoning the defendant as a party is in a sense a continuation of an existing action, still we are of opinion that it was not the intention of the Legislature that an administrator de bonis non under § 17 should be held liable in an action where the right of action has accrued and is originally brought against a former administrator, unless the new administrator is made a party defendant in such action within two years from the date of his appointment, except as is provided in § 18 of the same chapter. That is to say, the liability of an administrator de bonis non in such an action is limited to two years from the date of.his appointment unless new assets come to .his hands, whether the action is brought against him in the first instance or he is made a party to a pending suit originally brought against a former administrator.
To construe the statute as authorizing a creditor to summon in an administrator de bonis.non after the death, resignation, or removal of the original administrator, after- the expiration of two years from the appointment of the new administrator, and when his final account has been allowed and a decree for distribution ordered by the court has been complied with, would be such an interpretation of the legislative intent as might result in manifest injustice and unreasonable delay in the settlement of estates. The statute should not be so construed in the absence of plain and unequivocal language to that effect.
As the defendant had no knowledge of the pending action, and was not made a party to it until more than four years after his appointment, he cannot be held' liable. The judge rightly ruled that the special statute of limitations, (R. L. c. 141, § 17,) is a bar to the action.
Exceptions overruled.