151 Mass. 601 | Mass. | 1890
The Pub. Sts. c. 136, § 9, provide that an executor or administrator shall not be held to answer to the suit of a creditor of the deceased unless the suit is commenced within two years from the time of his giving bond, except as afterwards provided. Section 13 provides that a creditor of the deceased, whose right of action does not accrue within the two years, may present his claim to the Probate Court “ at any time before the estate is fully administered; and if, on examination thereof, it appears to the court that such claim is or may become justly due from the estate, it shall order the executor or administrator to retain in his hands sufficient to satisfy the same.” Section 14 provides that the executor or administrator shall not be obliged to pay such claim unless it is proved to be due in an action commenced by the claimant within one year after it becomes payable.
The respondent was appointed and gave bond as administrator of the estate of George S. Paine on September 28,1885. On September 12, 1887, the petitioner filed the petition which is before us, presenting a claim against the estate of Paine, the right of action on which would not accrue within the two years, and praying that the administrator might be directed to retain assets in his hands; and the only question before us on this appeal is whether the estate was fully administered. Paine was a resident of Maine, and that is the place of principal administration o.f his estate. The respondent is administrator there and is ancillary administrator here. He filed an account here on September 27, 1886, which was allowed on Oc
The Pub. Sts. c. 138, § 1, provide that, when administration is taken in this Commonwealth on the estate of a non-resident, his personal estate here shall, after the payment of his debts, be disposed of according to his will, or, if he left no will, according to the laws of his domicil. Section 2 reads: “ Upon the settlement of such estate, and after the payment of all debts for which the same is liable in this Commonwealth, the residue of the personal estate may be distributed and disposed of in manner aforesaid by the Probate Court; or in the discretion of the court it may be transmitted to the executor or administrator, if any, in the State or country where the deceased had his domicil, to be there disposed of according to the laws thereof.” The authority to order the estate to be transmitted to the place of principal administration does not exist until after the payment of all debts for which the estate is liable. It is liable for debts for which the administrator is liable to be sued, and the plain meaning of the statute is that the court shall not order the estate to be transmitted until the expiration of the two years has relieved it from liability for the debts of the intestate. Until then, the court cannot know that there are no debts. The court has no authority to order the estate to be transmitted until the creditors here are all paid, and it has no jurisdiction to determine that there are no unpaid creditors here until the time fixed by law within which they may present their claims has expired. The court has no power to summon in creditors to present their claims sooner, and creditors lose no rights by not sooner prose
The petitioner presented his claim before the expiration of two years from the appointment of the administrator. The order to retain property has reference to an order of distribution or to transmit property, and operates to extend the time within which an action may be brought. The statute is imperative, and gives to creditors whose right of action does not accrue within the two years, and who make application within that time, an absolute right to have the time within which they may sue extended by an order to retain property, and to be put on the same ground as a creditor who has brought an action within that time. The allowance of the account so far as it authorized the transmission of assets to the place of principal administration, and so far as it allowed the administrator credit for assets transmitted by him, was void as to the petitioner, and the estate was not fully administered as to him.
We have not considered whether the allowance of the account can be taken to include or amount to an order to transmit the estate. Domestic distributees, as well as creditors, may have an interest in the question whether the assets shall be transmitted to a foreign jurisdiction, which would require that the question should be settled after the settlement of the administrator’s
It was held in Browne v. Doolittle, ante, 595, that a decree of final distribution, made before the expiration of the two years, was Toid as to a creditor who brought his action within that time, and as to an administrator de bonis non subsequently appointed.
Decree affirmed.