118 A. 846 | N.H. | 1922
The question before this court is not whether the court can, in a proper case, extend the time for presenting claims to the commissioner, Parker v. Gregg,
In other words, the question before the court is why the legislature enacted s. 4. Was it, as the plaintiff contends, to enable the court, among other things, to relieve creditors who are prevented by accident, mistake or misfortune from appealing from the disallowance of their claims, within the time limited by statute; or was it, as the defendant contends, to enable the court to relieve creditors who through accident, mistake or misfortune fail to present or support their claims within the time limited in the commission? Bufford v. *397
Johnson,
Sections 3 and 4 of P.S., c. 192, were originally part of the same section, Laws 1830, p. 360, but assumed substantially their present form in so far as the question we are considering is concerned, in the Revised Statutes c. 162, ss. 3 and 12; C.S., c. 171, ss. 3 and 12; G.S., c. 180, ss. 3 and 12; G.L., c. 199, ss. 3 and 12; P.S., c. 192, ss. 3 and 4.
Section 3 provides that, "A time, not less than six nor more than nine months from the date of the commission, shall be prescribed therein by the judge for the creditors to bring in and support their claims against the estate."
Section 4, as amended by Laws of 1899, c. 3, s. 1 provides that, "For sufficient cause, the judge may allow further time or times to the creditors, not exceeding in the whole two years from the date of the original commission; in which case the notice originally ordered shall be renewed, and such further notice given as the judge may order; provided, however, that if such extension is asked for the purpose of presenting a claim which the creditor has failed to seasonably present at the hearings held under the original commission, the extension shall not be allowed until the probable expenses of the further hearing, as taxed under the direction of the judge, shall have been paid into court for the benefit of the estate."
If the language of these sections is to be given its ordinary meaning, it is obvious that the time s. 4 authorizes the court to give creditors is time to bring in and support their claims, Bufford v. Johnson, supra, 493, ___ not time to appeal from the disallowance of claims which have been presented to and rejected by the commissioner. In short there is nothing in the language the legislature used which even suggests that failure to appeal within the time limited by statute may constitute "sufficient cause" for extending the commission. It is probable therefore that the office of s. 4 or its purpose in the legislative scheme is to enable the court to relieve those who through accident, mistake or misfortune fail to bring in and support their claims within the time limited in the commission, and not, as the plaintiff contends, to enable the court to extend the time within which creditors may appeal from the disallowance of their claims. If that had been the legislature's intention it is probable it would have used apt words to express it, and that instead of saying as it did in P.S., c. 193, s. 18, "All demands so presented and rejected, and not allowed *398 upon an appeal, shall be forever barred," it would have said that such demands shall be forever barred, unless the court finds that the creditors' failure to appeal constitutes sufficient cause for extending the commission.
In other words, if the legislature had intended to give the court power to extend the time within which creditors may appeal from the disallowance of their claims, we should expect to find a section in c. 193 giving it that power in express terms, Parsons v. Parsons,
Since this is so, it is probable that if the legislature had intended to give the court power to extend the time for appealing from the acceptance of the report of the commissioner, we should find in c. 193 a section similar to s. 7 of c. 200. When we consider the facts that the legislature has provided in terms for extending the time for appealing when an estate is settled in the ordinary, and has made no such provision when an estate is settled in the insolvent course, it is to say the least, improbable that it thought it was giving the court that power when it enacted s. 4, for to assume that that was its intention is to assume that it intended to give the court power to do by indirection, what it has not given it the power to do in a direct proceeding.
The fact that in other cases in which the court has power for cause shown to suspend a statute (P.S., c. 191, s. 27), the legislature has given it that power in express terms, tends to strengthen this conclusion. The fact one of the purposes the legislature had in mind when it enacted P.S., c. 192, s. 1 (the section which permits executors and administrators to settle estates in the insolvent course), was to enable the persons interested to expedite the settlement of an estate, Hilton v. Wiggin,
In short, the evidence relevant to the issue of why the legislature enacted s. 4 all tends to the conclusion, that the power it confers on the court is limited to power to relieve those who, through accident, *399 mistake or misfortune, fail to present and support their claims within the time limited in the commission.
Appeal dismissed: decree of the probate court affirmed.
All concurred.
