78 A. 53 | R.I. | 1910
This is an action of debt on bond brought in the Superior Court, in the name of the Municipal Court of the city of Providence, at the instance of Aldrich Eldredge Company, a corporation, claiming to be a creditor of Louis K. Bostwick, deceased, to the amount of $230.37, against the defendant as executrix of said decedent upon her bond to pay his debts and legacies. The declaration alleges the execution of the bond by the defendants, the executrix and her surety; that the testator owed said creditor the above-named sum, which the defendants by virtue of the bond became liable to pay, and which they have refused to pay after request. To this declaration the defendants have demurred, because
1st. It does not show that said creditor's claim was filed in the Probate Court.
2d. It does not show that said claim was not disallowed by said executrix or has been established by commissioners or by judgment.
3d. It does not show that a decree of unfaithful administration has been entered by the Probate Court. *552
4th. It does not show that plaintiff is entitled to bring any action on said bond against these defendants.
After a hearing upon the demurrer in the Superior Court, the presiding justice sustained the demurrer upon the first and second grounds and overruled the demurrer so far as it was dependent upon the third ground. To these rulings the parties severally excepted, and the case is now before this court upon their bills of exceptions. In reaching his conclusions the presiding justice of the Superior Court expressed himself as follows: "Giving full effect to the decisions in this State upon the status of an executor who has given a bond to pay debts and legacies, we think that a creditor is not exempt from the provisions of the statute requiring him to file his claim and obtain its allowance in the Probate Court. We think the executor who has given such a bond is entitled to the protection of the statute and that he is not subject to an action by any person claiming to be a creditor but whose claim has not been previously ascertained.
"We doubt if it would be necessary to obtain a decree of unfaithful administration against an executor who has given bond to pay debts and legacies under the decisions of this State."
The object to be effected in obtaining a decree of unfaithful administration against an executor who has given the usual and ordinary bond under the provisions of C.P.A., § 1012, — which reads in part as follows: "Every executor, administrator, and guardian, before entering upon the execution of his trust, shall give bond to the court of probate in such sum as it shall require, with sufficient surety or sureties, and with condition, except as provided in sections 1013 and 1014, substantially as follows:
"1. In the case of an executor or administrator with the will annexed:
"First. To make and return to the probate court as by law required a true inventory of all the testator's personal property which, at the time of making such inventory, shall have come to his possession or knowledge. *553
"Second. To administer according to law and the will of the testator all personal property of the testator which may come to his possession or into the possession of any person for him, and all rents and proceeds of real estate which may be received by him.
"Third. To render upon oath true accounts of his administration as by law required." — is to procure conclusive proof of the breach of the second condition aforesaid, which is expressly excepted from the conditions of the bond to pay debts and legacies given under the provisions of the following section: "SEC. 1013. Instead of the above bond an executor, if so authorized by the will, or if he be the residuary legatee thereunder, may give a bond to the probate court in a sum and with surety satisfactory to the court, and with condition to pay the funeral charges, debts, and legacies of the testator and such allowance as may be made by the court for the support of the widow and family of the testator. In such case an executor shall not be required to return an inventory, and an executor who is a residuary legatee need not render an account to the probate court." The requirements of C.P.A., § 1027: ("If such suit be brought by a creditor of the deceased person, he shall show:
"(1) That his claim has been duly filed.
"(2) That his claim has not been disallowed by the executor or administrator, or has been established by commissioners or by judgment.
"(3) That a decree of unfaithful administration has been entered as provided in the next following section, and if the estate be insolvent, he shall also produce a copy of the order of distribution.") are broad enough to include suits upon any bond given to a Probate Court when brought by a creditor of a deceased person; but it is evident that some of them are inapplicable to suits brought upon bonds for the payment of debts and legacies: Thus the provision for producing a copy of the order of distribution if the estate be insolvent is inappropriate in the case of such bonds. As was said by Douglas, J., in Adams v.Probate Court, c.,
We are therefore of the opinion that suits upon bonds to pay debts and legacies are not governed by the provisions of section 1027 aforesaid. There is, however, a distinction to be noticed between suits by legatees and suits by creditors upon such a bond. In the case of Probate Court v. Adams,
Under the provisions of C.P.A., § 886, the executor or administrator must disallow such claims as he intends to contest within the time therein prescribed. See Fitz-Simon v.Fitz-Simon,
It thus appears that the former statements were unnecessary to the determination of the point in issue and were thereforeobiter dicta.
The plaintiff has also called our attention to the case ofProbate Judge v. Abbott,
"That in respect to the proof of claims there are essential differences between this case and the ordinary case of administration, is obvious on the most cursory examination of the statutes. An executor who gives the customary bond has no authority whatever to dispense with the proof of claims, or to make any admissions respecting them which can bind either himself or the estate. Fish v. Morse,
The differences in respect to proof of claims, between the case where an executor has given bond to pay debts and legacies and the ordinary case of administration, so obvious to the court aforesaid "on the most cursory examination of the statutes" of Michigan, do not exist under the Statutes of Rhode Island. In this State the executor or administrator who gives the customary bond has complete authority to dispense with the proof of claims, and even by neglecting to disallow a claim filed which he had intended to contest may bind the estate by such omission. No good reason has been advanced for construing C.P.A., § 883, supra, to apply only to claims proved in the ordinary course *558 of administration. A bond to pay debts and legacies is not a bond to pay all claims. There must be some time and place when and where the validity of a claim originally held against a decedent may be inquired into by an executor or administrator who has given bond to pay the debts and legacies of his decedent. And no better time or place has been suggested for the initial inquiry than the one provided by the statute itself. We are therefore of the opinion that it was necessary to file the claim in question in the office of the clerk of the Probate Court under C.P.A., § 883, supra, and that if the claim was not so filed within the statutory period that the same has been barred by the provisions of the statute. That if the claim was so filed the claimant is obliged to prove it and that it is also incumbent upon the claimant to prove that the same has not been disallowed by the defendant or, if disallowed, that the same has been established according to law. As it is necessary to prove that these essential steps have been taken, it is also necessary to aver, in the declaration, a compliance with the law in these respects. The declaration in the case at bar lacked these averments and was therefore demurrable, and the demurrer thereto upon these grounds was properly sustained.
The exceptions of the plaintiff and defendant are severally overruled, and the case is remitted to the Superior Court for further proceedings. If, however, it should be made to appear to the Superior Court that the claim had been duly filed and not disallowed, or, if filed and disallowed, nevertheless it had been legally established, there is nothing to prevent the court from allowing an amendment to be made to the declaration in these particulars, with or without terms, in the discretion of said court.