241 Mass. 155 | Mass. | 1922
The defendants’ exceptions were taken in an action to enforce liability, created by the code of New York. The plain
The defendants are minors, and were residents in New York when said Brewster died, but removed to this Commonwealth prior to July 5, 1913, when guardians were appointed over their estate by the Probate Court for Bristol County. The persons so appointed were authorized to act as ancillary guardians in New York, on August 18, 1913. Afterward, by authority of an order of a Surrogate’s Court of New York, a distribution was made of the personal estate which had belonged to Charles O. Brewster in his lifetime, as follows: To the executor’s widow, Elizabeth H. Brewster, in cash $3,284.10, and chattels of the value of $375; to the ancillary guardians of the defendant Horatio H. Brewster, $3,388.62 in cash, and chattels of the value of $250.50; to the ancillary guardians of Elizabeth Brewster, $3,139.12, and chattels of the value of $500. These amounts so paid in cash with slight addition were transferred in January, 1914, to the guardians appointed in Massachusetts, and the chattels were duly transmitted to and received by said guardians. In September, 1917, a further distribution of $57.19 was made to each minor.
The claim sought to be enforced in this action was upon an instrument dated July 8, 1910, given by the said Charles O. Brewster to the said Purdy, reciting the receipt of $5,000 and promising to repay that amount on August 1, 1910, with interest. It was not presented to the administrators of the estate of Charles O. Brewster. There was no controversy as to the execution and as to the original binding force of the obligation so created, and it was not contended that it had been paid in whole or in part.
The judge who heard the case found for the plaintiffs. No question of pleading is involved. The plaintiffs base their contention of liability solely upon §§ 1837-1839, 1850, 1855-1858, and 1860 of the New York Code of Civil Procedure, which were in evidence.
The first of these sections provides that an action “may be maintained . . . against the surviving husband or wife of a de
The defendants urge that a cause of action created by this provision cannot be enforced in our courts. A liability existing under the statutes of another State is recognized and enforced in this Commonwealth providing there is jurisdiction over the parties, when said liability is not obnoxious to public policy, using this term broadly, if the relief is in its nature transitory, and if the remedy given can be afforded with substantial justice under the procedure here existent. This general principle has been carefully considered in previous decisions and is not now fully restated. Higgins v. Central New England & Western Railroad, 155 Mass. 176. Hancock National Bank v. Ellis, 172 Mass. 39. Howarth v. Lombard, 175 Mass. 570. Mulhall v. Fallon, 176 Mass. 266, 269. Walsh v. Boston & Maine Railroad, 201 Mass. 527. Hanlon v. Frederick Leyland & Co. Ltd. 223 Mass. 438.
The provisions of the civil code of New York in substance create a cause of action which can be enforced only as far as property of the deceased has come into possession of the defendant. A much narrower liability somewhat of the same nature existed at common law. This need not be defined, but it has been recognized repeatedly throughout the United States. See Norcross v. James, 140 Mass. 188; Clark v. Holbrook, 146 Mass. 366, and cases cited; Bullard v. Moor, 158 Mass. 418, 425; McCarthy v. Mullen, 53 Vroom, 379, 385; Hall v. Martin, 46 N. H. 337. Liability at common law and under the statutes depends upon the contract of the ancestor, and is not based upon the assent or agreement of the defendant. Valentine v. Farnsworth, 21 Pick. 176. Russ v. Alpaugh, 118 Mass. 369, 378. Clark v. Holbrook, supra. It is based upon the possession by him of property liable to the payment of the debt. It is in accord with the general principle founded on broad considerations of justice, that the estate of an individual, real and personal, shall be applied to the payment of
A statutory right of action, in some respects in extension of common law liability and founded upon the same reason, but much more restricted in its character, has long existed in this Commonwealth. G. L. c. 197, §§ 28-34. Hall v. Bumstead, 20 Pick. 2. Valentine v. Farnsworth, supra. Julian v. Boston, Clinton, Fitchburg & New Bedford Railroad, 128 Mass. 555. Bassett v. Drew, 176 Mass. 141. Converse v. Nichols, 202 Mass. 270. The existence of a statute of the forum of the same character as that claimed to be enforceable is a potent if not conclusive indication that the foreign statute is not contrary to the public policy of the jurisdiction where the case is tried. The statute of Massac chusetts relating to the liability of heirs, next of kin, devisees and legatees has been held to be enforceable in Vermont. Bullard v. Perry, 66 Vt. 479.
We are of opinion that the provisions of the New York code may be enforced in this Commonwealth. Bullard v. Perry, supra. See also De Ende v. Wilkinson, 2 Pat. & H. 663; Hairston v. Medley, 1 Gratt. 96; Wilkinson v. Leland, 2 Pet. 627, 658, 660. The case is not governed by Julian v. Boston, Clinton, Fitchburg & New Bedford Railroad, supra, where the remedy sought under a statute of this Commonwealth was for transactions arising under the laws of another State. The question is not free from difficulty, but a careful examination of the provisions of the code which were in evidence leads us to the conclusion that the liability created thereby can be enforced in this Commonwealth consistently with our procedure and with substantial justice.
The fact that the payments were to guardians in Massachusetts does not alter the essential character of the transactions. The assets were received as a part of the property to which the defendants became entitled under the laws of New York. The liability was not by way of contractual agreement; hence the lack of knowledge of its existence did not affect it.
The defendants’ contention that no liability attached because of their minority is unsound. The obligation was created by law, and for that reason did not require assent or contractual capacity. Butler v. Breck, 7 Met. 164. See Williston on Contracts, 446; 14 R. C. L. 254. The provision of the code (§ 1858) which provides that an execution “shall not be issued against an infant heir or devisee, until the expiration of one year after final judgment is rendered, and the judgment-roll filed,” does not render it unjust or impracticable to enforce liability in our courts, because the existence and adjudication of the liability is not affected. The section expressly provides that the action “is not delayed, nor is the remedy of the plaintiff suspended, by reason of the infancy of any of the parties.”
The defendants urge that the action is barred by St. 1911, c. 147, of this Commonwealth (see now G. L. c. 260, § 11), relating to suits against executors, administrators, trustees and guardians. That statute, however, applies only to actions upon contracts made or acts done by a person “acting as the executor, administrator or other legal representative of the estate of a deceased person, or by any person acting as trustee or guardian.” The cause of action now considered is not based upon any contract made by the defendants’ guardians, nor is it in contemplation of law founded upon their act creating an obligation against them or their wards. As already stated, the obligation in force is that of the deceased, and the receipt of the property by the guardians is not an act which created the obligation which is enforced.
The exceptions raise no question of law as to the general statute of limitations here in force. It is stated in the exceptions that “it is not claimed that the plaintiffs’ right of action, if any, is barred by the Massachusetts general statute of limitations.” Nor is the action barred by the civil code of New York. By § 401 of that code, which was in evidence, it is provided that if a person is without the State when a cause of action accrues against
The only exception not hitherto considered relates to the computation of the amount for which the defendants were held under the finding of the judge. No exception relates to the joinder of the defendants in one action, nor to the nonjoinder of the executors of the will of Elizabeth H. Brewster (widow of Charles O. Brewster), who died prior to July 5, 1913, and who was a resident of Massachusetts at the time of her death. The judge found for the plaintiffs against the defendant Horatio A. Brewster for $2,931.28, and against the defendant Elizabeth Brewster for $2,718.67.
It is provided by §§ 1838 and 1839 of the civil code of New York, that an action to enforce the hitherto considered liability under § 1837 of that code “must be brought, either jointly against the surviving husband or wife, and all the legatees or all the next of kin, as the case may be, or at the plaintiffs’ election, against one of them only,” and that “Where a joint action is brought . . . the whole sum, which the plaintiff is entitled to recover, must be apportioned among the defendants, in proportion to the legacy or distributive share, as the case may be, received by each of them; and the final judgment must award, against each defendant separately, the proportionate sum thus ascertained.” The findings and rulings of the judge are made a part of the bill of exceptions and for that reason are before the court. Davis v. Boston Elevated Railway, 235 Mass. 482. With reference to the amount found the judge said: “In finding for the plaintiff, I have ascertained the total amount due on the note in question including interest from its date until March 14, 1919, when this action was brought, and have apportioned as against each defendant the
The defendant Horatio A. Brewster as distributee had received in cash $3,445.81, and chattels to the value of $250; the defendant Elizabeth Brewster as distributee had received in cash $3,196.31, and chattels to the value of $500; and Elizabeth H. Brewster, their mother, had received $3,341.29 in cash, and chattels to the value of $375. If we follow with care the computation based on these figures with reference to the ruling which the judge made for his own guidance, it is evident that in computing the amounts found to be due, the judge in effect decided that liability cannot be based upon the receipt of specific articles of personal property described as “ chattels.” In finding as a fact the law of New York, he may have come to the conclusion that the distributees of specific but undescribed articles of personal property were not liable in an action at law based on the statute to pay de bonis propriis a sum measured by their value. See Hauselt v. Patterson, 124 N. Y. 349 (which was in evidence); Haines v. Haines, 40 Vroom, 39.
Although not argued, a difficulty presents itself as to the entry of judgment on the findings of the judge. This must be considered, “for no agreement or assent of the parties will enable the court to render a judgment which the law does not warrant.” Leonard v. Robbins, 13 Allen, 217, 219. While the liability created by the code may be enforced in New York in appropriate instances by joint or several action (at the creditor’s election) and while in that State it is expressly provided that there may be separate judgments, against more than one person, which need not be for the same amount, nevertheless the judgment is not joint. No such authority to enter judgment exists in Massachusetts.
The only instances in which our statutes have so modified the common law as to permit several judgments in an action of con
Exceptions overruled.
Permission granted to amend as stated in the opinion.