29 A. 999 | N.H. | 1892
This suit is based upon s. 27, c. 191, P. S., which provides that "Whenever any one has a claim against the estate *420
of a deceased person which has not been prosecuted within the time limited by law, he may apply to the supreme court, at a trial term, by petition setting forth all the facts; and if the court shall be of the opinion that justice and equity require it, and that the claimant is not chargeable with culpable neglect in not bringing his suit within the time limited by law, they may give him judgment for the amount due to him; but the judgment shall not affect any payments or compromises made before the beginning of the proceedings." The demurrer raises the question whether the legislature intended that this section should apply to claims against estates administered in the insolvent course. The section was first enacted in 1872 (Laws 1872, c. 7, s. 2), and was copied substantially from the Massachusetts statute. Mass. Laws, 1861, c. 174; Laws 1863, c. 235. When the laws of Massachusetts were compiled and revised in 1881, section 2 of the act of 1861 was put in the chapter relating to the payment of debts, etc., of solvent estates, immediately following the section providing a limitation of actions against such estates, and is expressly referred to as containing one of the exceptions to the bar created by that section. Mass. P. S., c. 136, ss. 9, 10. At the time of the passage of the act of 1861 there were provisions in the Massachusetts statutes for the appointment of commissioners to examine and allow claims against insolvent estates and for appeals from their decisions, similar to those in force in this state. Mass. G. S., c. 99, ss. 2, 3, 4, 8, 9, 10; Mass. P. S., c. 137, ss. 2, 3, 9, 11, 12, 13. There was also the following provision: "Any person whose claim is disallowed by the commissioner, and who, for other cause than his own neglect, omits to claim or prosecute his appeal as before provided, may, upon his petition therefor to the supreme judicial court holden in any county, be allowed to claim and prosecute an appeal in manner aforesaid, upon such terms as the court imposes, if it appears that justice requires a further examination of his claim; but no such petition will be sustained unless prosecuted within two years after the return of the commissioners and within four years after the date of the administration bond." Mass. R. S., c. 68, s. 13; Mass. G. S., c. 99, s. 13; Mass. P. S., c. 137, s. 16. It is apparent that the act of 1861 was limited in its application to claims against solvent estates. The fact that the New Hampshire statute was copied from it is evidence of an intention to confine its application to claims of the same nature. Commonwealth v. Hartnett, 3 Gray 450; Commonwealth v. Taylor,
The section provides that if the claimant proves the requisite facts he shall have judgment for the amount of his claim. No limitation is put upon the use that may be made of the judgment, except that it shall not affect payments or compromises previously made. By virtue of the judgment the creditor is at liberty to take any property of the estate that has not been previously used in making payments or compromises, without reference to the claims of other creditors. This is inconsistent with the scheme *422 of equality which is a distinguishing feature of the law relating to the settlement of insolvent estates. When a creditor of such an estate recovers judgment upon appeal from the commissioners, he is not entitled to an execution for the collection of his judgment, but the amount of it is certified to the probate court and substituted for the amount allowed by the commissioners. P. S., c. 193, s. 13. The same is true if the claim is adjusted by referees (s. 15). This course is taken to secure an equal distribution of the assets among the creditors. The absence of a similar provision in the section on which the plaintiff relies tends to show that the legislature did not intend the section should apply to claims against insolvent estates. A consideration of all the evidence leads to the conclusion that there was no intention, by the enactment of this section, to depart from the policy requiring the speedy settlement of insolvent estates, which has been in force for at least a hundred years. Laws, ed. 1815, p. 219, ss. 2, 3; Laws, ed. 1830, p. 364, s. 7; R. S., c. 163, s. 15; G. S., c. 181, s. 16; G. L., c. 200, s. 16; P. S., c. 193, s. 18.
Exception overruled.
CARPENTER, J., did not sit: the others concurred.