304 Mass. 627 | Mass. | 1939
Olive Lariviere, administratrix of the estate of her husband, Louis Lariviere, late of Barnstable, de
There was no error.
According to the findings of fact made by the judge and embodied in the report of material facts, the deceased gave the promissory notes to the claimant on the dates thereof, respectively, for money then lent by the claimant to the deceased; and the claimant and the deceased were married to each other on August 11, 1934. The evidence reported amply supports these findings, and there is no contention to the contrary. The deceased, therefore, became liable to the claimant on the notes and continued to be liable thereon up to the time of the marriage. The marriage, however, suspended the right of the claimant to enforce this liability, but did not extinguish it or render the notes void. Since the notes were valid when given, in the absence of any defence thereto other than the marriage they can be enforced by the claimant against the estate of the deceased. Martin v. Martin, 146 Mass. 517, 518. Crosby v. Clem, 209 Mass. 193, 194. Giles v. Giles, 279 Mass. 284, 285.
The appellants’ sole contention is that recovery by the claimant is barred by the statute of limitations. The burden of proving that process was sued out within the period of limitations was on the claimant. McCarthy v. Simon, 247 Mass. 514, 519. Breen v. Burns, 280 Mass. 222, 228. The judge found, however, that a payment of interest on each note was made before the marriage and within six years of the filing of the claim based thereon,
In view of the conclusion reached it is unnecessary to consider the effect, if any, upon the running of the statute of limitations, of the fact that the claimant, the payee of the notes, could not sue the maker thereon while they were husband and wife. See Williston on Contracts (Rev. ed.), §§ 2011-2013.
Decree ajjirmed_