227 Mass. 303 | Mass. | 1917
This is an action on a judgment for $1,227 damages and $39.53 costs, recovered in February, 1896, against William A. Bray.
William A. Bray died intestate January 7, 1913. January 9, 1913, the defendant was appointed administrator of his estate; he duly qualified, gave due notice of his appointment, and on April 8, 1913, filed an inventory. On the second day of October, 1913, he paid the debts due from the estate of which he had notice, to the amount of $2,598.64, and in so doing exhausted the entire estate of the deceased. This writ was served on the defendant August 28, 1914, more than one year after notice was given of his appointment, and until that time he had had no notice of the plaintiff’s, claim. December 7, 1914, the defendant filed an account in the Probate Court showing a full administration of all the estate of the intestate previous to notice of the plaintiff’s demand, with no balance in his hands at the time he received this notice. The account was allowed on the same day, without any notice ordered or given by publication or otherwise. The plaintiff had no knowledge of this until December 14,1914, on which day he filed a petition to vacate the order allowing the account and “filed,an appeal to the Supreme Judicial Court . . . from the allowance of said account.” Both the petition and appeal were pending at the time of the trial of this action.
An executor of the will or an administrator of the estate of one who died before September 1, 1914, who had given due notice of his appointment might, after one year, pay the debts of the estate if he did not within one year after he had given notice of his appointment receive notice of demands which authorized him to represent the estate to be insolvent. Because of such payments, he did not become personally liable to pay any creditor if payment was made before notice of such creditor’s demand
It is provided by R. L. c. 141, § 5, that the payments of charges of administration and preferred claims which are sufficient to exonerate the executor or administrator from personal liability shall be proved by a decree of the Probate Court. The determination whether the estate of a deceased person has been
The administrator filed an account in the Probate Court in December, 1914, after service upon him of the plaintiff’s writ, and although the record shows this account was allowed (see Probate Court Rule 11), no notice was given the plaintiff (Browne v. Doolittle, 151 Mass. 595, 597) and a motion to vacate and an appeal from the order of the Probate Court allowing the account were pending at the time of the trial of this action. See R. L. c. 150, § 17; St. 1907, c. 438.
As an appeal from a decree or order of the Probate Court in a case of this kind suspends its operation until the appeal is decided (R. L. c. 162, § 16, Gale v. Nickerson, 144 Mass. 415, Tyndale v. Stanwood, 186 Mass. 59; S. C. 190 Mass. 513, Stone v. Duffy, 219 Mass. 178, 182), the defendant could not rely on the fact that the Probate Court previously had allowed the account, an appeal having been taken from the order of the court allowing it. To avail one’s self of the defence given by the statute it must be shown that at the time of trial the estate had been settled and the account finally allowed. As this could not be done the plaintiff’s third request should have been given.
If a motion is made in the Superior Court within thirty days after the filing of the rescript, for the continuance of the case until
Exceptions sustained.