72 Me. 343 | Me. | 1881
Assumpsit on a promissory note given by the defendant’s testator, payable to his wife, Marion Dunham or bearer, at the testator’s decease, which occurred November 30* 1876. The question is, has the requirement of It. S., c. 87, §■ 12, as amended by stat. 1872, c. 85, § 12, been complied with. That requirement, so far as it applies to this case, is that, no action shall be maintained against an executor on a claim against his testator’s estate, "unless such claim is first presented in writing, and payment demanded at least thirty days before the action is commenced.”
In this case, the note itself was presented seasonably to the defendant, and payment thereof demanded; and the plaintiff contends that thereby his claim was "presented in writing,” within the substantial requirement of the statute.
A substantial compliance with its provision, is a condition precedent to the maintenance of the action. Eaton v. Buswell, 69 Maine, 552. What constitutes a presenting in writing* of a claim, must be determined (in the language of Barrows, J. in Nichols v. Perry, 58 Maine, 29, 32, in construing a somewhat similar statute notice,) "by a fair and liberal construction of the statute in furtherance of its object.” And considering the numerous claims meritorious and otherwise, which are frequently set up
Thus : As early as the revision of 1841, it was provided that claims against insolvent estates "must be presented in writing, supported by affidavit of the claimant or of some person cognizant thereof, stating what security the claimant has, and the amount of credit to bo given.” Ii. S., 1841, c. 109, § 6. And § 7, allowed the commissioners of insolvency to examine the claimant under oath on all matters relating to the claim. The design of these provisions was to afford persons administering on estates, additional means for the protection of the estate against spurious claims, Shepley, J. Morse v. Page, 25 Maine, 496, 499. But realizing that spurious claims were not confined to insolvent estates, the legislature authorized executors or administrators to require of claimants against solvent estates, precisely the same mode of prosecuting their claims as the statute imperatively demanded of claimants against insolvent estates. Stat. 18(59, c. 7, § 6, now incorporated in 1L S., c. 64, § 60. And on the same day the legislature enacted the statute under consideration. Stat. 1869, c. 9, incorporated in 34. S., c. 87, § 11, and amended by stat. 1872, c. 85, § 12. The phrase "presented in writing” is in each of the three statutes mentioned. We fail to see how the provisions of the first two statutes can be complied with, unless the claim, whether the original evidence of it is in writing or not, be reduced to waiting; for both of those statutes seem to contemplate that the claim presented shall be deposited with the executor, else he could not prosecute him should he commit per
The word "claim,” is a general one, and broad enough in its signification to include all demands of every name and nature, whether resting in contract oral or written, or sounding in tort. The statute makes no distinction between verbal or written contracts, simple contracts or specialties. Whichever or whatever the claim may be, it is to be presented in writing. The law being general, its construction must be general, and apply to all cases. We cannot divide it into as many special rules as there are cases which may arise under it.
Of course the claimant is not bound, under the statute requiring thirty days notice, to furnish the executor a detailed statement of all the information he may have concerning his claim. That construction would add to the nature and extent of the notice required by the statute. Ingalls v. Cole, 47 Maine, 540. If the executor desires more than a simple written statement of the claim handed to him, R. S., c. 64, § 60, affords him ample means to obtain it.
But stat. 1872, c. 85, § 12, like the others cited, was enacted for the benefit of estates, and of those who take upon themselves the important trust o.f administering on them; and any party may waive the provisions of a statute made for his benefit. Smith v. Chadwick, 51 Maine, 515; Mattocks v. Young, 66 Maine, 459. When a claimant hands to an executor a written statement comprising a full description of a promissory note to which his testator was a party, its date, sum payable, time of payment and parties, and demands of him payment thereof he has done all this statute requires of him. And if instead thereof, he hands to him the original note and permits him to examine and take memoranda of it, the executor thereby acquires the best possible evidence of the claim, together with a knowledge of the genuineness of the signatures of the responsible parties, and of the witness’ signature and the probability of the latter being made at the date of the note. And if the executor avail himself of such a presentation, and make no objection thereto, he must
But is is said that, when the note was presented to the defendant and payment thereof demanded, Eliza M. Marshall was the owner of the note and claimant, and that thereafterward and before the commencement of this action, she gave the note to her husband, the present plaintiff, who has never presented the claim anew to the defendant, but relies upon the presentment made by his wife; and the defendant contends that this plaintiff' cannot maintain an action thereon as claimant until thirty days after ho has presented it. We think this proposition is sound.
Of course the presentation may be made by the claimant in person, or by his agent or attorney. And while the statute does not require this in terms, or that no one who lias not presented it as claimant shall bring an action thereon, we think such a construction is fair, and the only one consistent with its object. Otherwise the executor might not be able to find the claimant in order to pay the note, and thus save costs and expense of a needless action. Moreover there might be legal reasons for not paying the note to a payee who may have presented it as claimant which might not exist as against some subsequent holder, without notice. Field v. Tibbetts, 57 Maine, 358. And the law of set-off' might have been the reason why the executor did not pay the note when presented by the heir of the maker, while the estate might not have any account against the present plaintiff.
The defendant does not question the title of the plaintiff to the note through a completed gift, as the plaintiff anticipated he would. And if he had raised that question and succeeded in defeating his title, thus leaving it in the wife, the authorities cited by the plaintiff’s brief would hardly be applicable; for the "facts reported and evidence offered” fail to show that the action was brought for the benefit of Eliza, and by her order; and the cases cited only authorize an action on a promissory note, which passes by delivery, to be brought in the name of any person wbo consents thereto, except when brought "for the benefit of the owner
According to the terms of the report,
Blaintiff nonsuit.