55 A. 547 | N.H. | 1903
"Whenever any one has a claim against the estate of a deceased person which has not been prosecuted within the time limited by law, he may apply to the supreme court, at a trial term, by petition setting forth all the facts; and if the court shall be of opinion that justice and equity require it, and that the claimant is not chargeable with culpable neglect in not bringing his suit within the time limited by law, they may give him judgment for the amount due him." P.S., c. 191, s. 27. Whether justice and equity require that the plaintiff should have judgment for the amount due him, and whether he is or not chargeable with culpable neglect in not bringing his suit within the time limited by law, are questions of fact which have been determined by the superior court in favor of the plaintiff, and which are not subject to revision here. Webster v. Webster,
Spelman v. Talbot,
By Massachusetts General Statutes, chapter 97, sections 5 and 6, suits against administrators were limited to two years after the date of the administration bond, with a further provision for the allowance of additional time if new assets came to the hands of the administrator after two years. A creditor having a claim justly due from an estate, but whose cause of action did not accrue within the two years, could at any time before final settlement of the estate present it to the probate court and secure an order for the retention of funds to meet it, and maintain a suit within a limited time after the claim became payable. Mass. G.S., c. 97, s. 8; Spelman v. Talbot, supra, 492; Grow v. Dobbins, Mass. 560. But there was no provision then for collection against an administrator upon a claim depending upon a contingency which might never happen, and which had not happened before he application to the probate court. Ames v. Ames,
Provisions being found for the prosecution by filing in the probate court, at any time before settlement of the estate, of claims accruing after the expiration of the statutory limit of two years, and no liability of the administrator existing as to claims depending upon a contingency not happening before the estate was settled, as to which other provision had been made, the only matter as to which it appears probable the new provision was intended to apply is the case of claims which might have been sued, but were not, within the two years. The statute was therefore construed, not as granting a new remedy, but as merely intended to prevent the bar of the statute according to the rules of equity. Wells v. *194
Child, 12 Allen 333. This construction, in effect, results from the conclusion also held here: that the statute was not intended to give a remedy where one already existed. Joslin v. Wheeler,
In this state no suit can be maintained against an executor unless the demand was exhibited to him within two years from the original grant of administration. P. S., c. 191, s. 2. The plaintiff must prove this fact affirmatively to recover under the general issue. Clough v. McDaniel,
In the present case, the plaintiff's cause of action arises upon breach of the covenants in a deed made by the defendant's testator. The defendant has in his possession funds sufficient to meet the claim, which is found to be just and due. The cause of action was not fully established until nine years after the grant of administration. The plaintiff acquired title to an undivided half of the premises within two years after the grant of administration, and if his possession under his warranty deed constituted a claim contingent upon the future assertion of the adverse title, which he could have exhibited to the administrator, his failure to do so is found not to constitute culpable neglect — a finding sustained by the allegation of the bill, which is not denied, that he had no knowledge of the adverse title until long afterward. As to the remainder of the premises, the plaintiff acquired his title four years after the grant of administration, and never had any claim which he could have presented within the statutory period. It is suggested that in such case the question of culpable neglect cannot arise. Spelman v. Talbot, supra. But if absence of culpable neglect to bring a suit can be found, as it plainly must be, from faultless ignorance of the existence of a claim (Wells v. Child, Allen 333, 336; Waltham Bank v. Wright, 8 Allen 121, such finding would seem to be equally well supported by the nonexistence of the claim. The practical advantage of defeating the plaintiff here, and putting him to a pursuit of the same funds after a distribution of them to the parties entitled, does not seem obvious. It may be questioned, under Ticknor v. Harris,
It is not intended and is not necessary to criticise or dispute the conclusion of the Massachusetts court, whose construction announced in Spelman v. Talbot has been followed in the Public Statutes, where the provisions in question are made expressly to apply to the two years limitation. Mass. P.S., c. 136, ss. 9, 10. Neither is there any conflict between the principles by which apparently conflicting results are reached in this case and in Spelman v. Talbot. In both states the fundamental legislative purpose was the same. The integer was to provide an equitable remedy where the legal remedy failed. Claims accruing after two years are not within the equitable remedy in Massachusetts, because they are not barred by the two years limitation, but may be presented in the probate court at any time before the estate is settled. In this state such claims are within the two years bar, and hence are included within the equitable remedy. The cases merely afford an illustration of the fact that the same language used under different circumstances may plainly have been intended to convey entirely different meanings. Kendall v. Green,
The defendant's next contention, that the plaintiff is guilty of culpable neglect in not filing his claim with the judge of probate, has already been considered. The defendant's third position, that there was no breach of the warranty in the deed of his testator to Marble, upon the ground that it was decided in Hitchcock v. Libby,
The defendant further claims that the plaintiff, the grantee of Hutchinson's grantee, was not the proper party to bring suit for a breach of the covenants in the Hutchinson deed. The covenants of seisin and right to convey are broken, if at all, when made, and do not run with the land. When possession attends the conveyance, the covenants of warranty and for quiet enjoyment run with the land, and the party dispossessed by a superior title is the proper person to bring suit upon the covenants, as to which there is no cause of action until there is a breach. Haynes v. Stevens,
The court awarded the plaintiff $957 as damages, and the plaintiff excepted. The general exception to the verdict raises no question which can be determined here. It does not appear that the court was requested to make any ruling of law as to the assessment of damages, or to report his finding of facts in relation thereto (P.S., c. 204, ss. 9, 10, 11), or that any motion was made to set the verdict aside as against the law or the evidence. If such motion can be made here, the facts are insufficient to determine it. The only facts appearing — that the premises in question are part of the land on both sides of the Androscoggin river purchased by Marble, the plaintiff's grantor, for $10,000, and that the land from which the plaintiff was evicted was essential to the use of a water-power on the premises, and the undisputed evidence that the water-power constituted one half in value of lands purchased for $10,000 — do not establish the value of the lands of which the plaintiff was evicted to be $5,000, even if it should be found that the water-power was worth that sum. It is to be presumed the land upon the opposite side of the river and the flowage were also essential to the use of the water-power. If all together constituting the water privilege should be found of the value claimed, it is clear each of the parts making up the whole cannot equal in value the whole. As the case stands, the plaintiff's exception must be overruled. The parties do not disagree as to the rule of damages, and the case presents no occasion for its consideration.
Exceptions overruled.
BINGHAM, J. did not sit:' the others concurred.