149 Mass. 253 | Mass. | 1889
To this bill brought against trustees by several cestuis que trust in behalf of themselves and all others in the same interest who may come in to prosecute the suit, the executors of one of the trustees, who are made defendants, plead the statute of limitations of actions against executors. The plaintiffs rely upon the Pub. Sts. c. 136, § 10, which authorize a judgment notwithstanding the statute of limitations, if the court is of opinion “ that justice and equity require it, and that such creditor is not chargeable with culpable neglect in not prosecuting his claim within the time so limited.”
On the last day within the time limited for bringing actions against executors, one Friend, as one of the cestuis que trust, and in behalf of all the others who might come in, brought a bill against these defendants for the same cause of action set
In this case, the authority of Friend to commence the suit in behalf of these plaintiffs was not only inferred by law from his relation to them as it appeared on the record, but was actually given by them. If the suit had been properly commenced- in the name of Friend, and the plaintiffs had at any time been admitted as parties, we think it would have been a prosecution of the claim by them within the time limited. But the suit was not properly commenced in Friend’s name, and the plaintiffs were not, and cannot be, admitted to prosecute it, and it has been dismissed on the plea that Friend had no interest. If the suit of Friend had been properly commenced, the plaintiffs would have been admitted to prosecute it, and there need have been no other prosecution of their claim to prevent the bar of the statute. They believed that the prosecution of their claim commenced in the name of Friend could be maintained, and for that reason did not pi’osecute it in their own name. If they were not negligent in entertaining and acting on that belief, they are not chargeable with culpable negligence in not otherwise prosecuting their claim within the time limited by the statute.
It is to be observed that the particular thing in reference to which negligence is alleged was not a thing in which either party had a special interest, or in reference to which the plaintiffs owed any special duty to the defendants. The plaintiffs knew that the time within which an action could be commenced was about expiring, and their interest was that the time should not expire before a suit should be brought. Whether the suit should be in the name of one cestui que trust or of another was immaterial alike to the plaintiffs and to the defendants. If Friend was a cestui que trust, there was no advantage to the plaintiffs or detriment to the defendants that the suit should be in his name rather than in that of another, and there was no reason that it should be in his name, except that he was one of the parties in interest. The suit was commenced by him as a cestui que trust in his own behalf and in that of the plaintiffs. Nothing appears that should suggest to the plaintiffs that he had divested himself of the interest that he once had; and it is admitted by the defendants that the plaintiffs “ were informed and believed” that he then had the same right of action that they had. We think that they were justified in acting upon the knowledge and information which they had, and were not put upon further inquiry whether Friend had not assigned the interest which by bringing the suit he asserted remained in him.
As the plaintiffs are not chargeable with culpable negligence in not prosecuting their claim within the time limited by the statute, and as no circumstance appears that renders it inequitable that they should now prosecute it, justice and equity require that they should be allowed to do so.
Plea overruled.