| Minn. | Sep 14, 1877
Lead Opinion
This case is before us upon a writ of certiorari, issued to the probate court of Hennepin county, for the purpose of bringing up for review an order of that court denying the application of the Massachusetts Mutual Life Insurance Company for further time within which to present its claim to the commissioners upon the estate of Matthew G. Elliot.
A motion is made to quash the writ upon the ground that the proper remedy is by appeal to the district court. The claim that an appeal will lie is based on the fourth subdi
This subdivision evidently refers to eases in which the merits of the debt or claim, etc.', are passed upon, and not to a case like that in hand, in which the probate court denies a party an opportunity to present his claim that it may be passed upon. It follows that in such case an appeal to the district court will not lie, and as an aggrieved party would otherwise have no recourse to the appellate jurisdiction of this court, a writ of certiorari will lie.
Gen. St. c. 53, § 8, provides that “on application of a creditor who has failed to present his claim, if made within six months from the time previously limited, and before the settlement of the final account of the administration of the estate, the court may, for good cause shown, renew the commission, and allow further time, not exceeding three months, for the commissioners to examine such claim. ”
We do not think the effect of the word “may” is to commit the power granted by this section to the mere discretion of the probate court. But, inasmuch as the power is given for the sake of preventing a failure of substantial justice, and as a creditor applying under this section has a substantial interest in having the power exercised, the section is mandatory. Where the application is made within the time limited, and “good cause” is shown, it should be granted. What is good cause is for the probate court to determine, in view of all the facts and circumstances of the case. Among other things, it is proper, upon the question of good cause, to inquire whether the applicant has been duly diligent in making his application. This inquiry is the more proper because the prompt and speedy settlement of estates is a general pervading and conspicuous purpose of our probate law, and because the provision under which applications for further time are
In this case it appears that the applicant, the insurance company, learned of the death of Elliot more than two months before the expiration of the time allowed by the probate court for the presenting, to the commissioners, of claims against his estate. It further appears that more than two months elapsed after the company had learned of Elliot’s death, before any steps whatever were taken towards the presentation to the commissioners of the company’s claim; and there is nothing to show that the company made any inquiry for the purpose of ascertaining whether commissioners had been appointed, or what time was allowed for presenting claims, nor that it made any suitable effort to find out where Elliot died. Upon this state of facts it seems to us that the judge of probate was warranted in his conclusion “that no diligence was used by the company to present its claim to said commissioners during the time limited” for that purpose, “and that therefore sufficient cause has not been shown for a renewal of the commission.”
The propriety of this conclusion is to our minds in no way affected by the fact that the company is a Massachusetts corporation, having its principal office in that state. This fact might furnish an excuse for such reasonable delay in presenting a claim as would be occasioned by the necessity of employing the mail for purposes of inquiry and transmission, but it could not furnish an excuse for a delay of two months. To allow so long delay would be to allow far more time than was necessary to enable the company to present its claim, in the exercise of moderate and ordinary diligence, and to put the company upon a footing better than that upon which the statute has seen fit to put a home creditor.
The claim which the company holds against the estate of Elliot is upon a bond executed by him and J. H. Baxton, with and as sureties for H.W. Baxton. It appears that the Baxtons are insolvent. The reason given for not presenting
The order denying the company’s application is accordingly affirmed, and the order staying proceedings is discharged.
Dissenting Opinion
dissenting. I think the fact that the comjpany was making an honest and reasonable endeavor, with ¡good grounds to believe in its success, to collect the whole !debt from the principal debtor, was a good excuse for not ¡proceeding at once against the estate of the surety, and that ■'the application ought to have been allowed.