128 Mass. 528 | Mass. | 1880
This action is brought under the Gen. Sts. c. 101, § 31, which provide that “ after the settlement of an estate by an executor or administrator, and after the expiration of the time limited for the commencement of actions against him by the creditors of the deceased, the heirs, next of kin, devisees and legatees, of the deceased, shall be liable, in the manner provided in the following sections, for all debts which could not have been sued for against the executor or administrator, and for which provision is not made in chapter ninety-seven.”
Section 31 defines and fixes the limits of the liability of heirs, devisees and legatees.
The object of the thirty-second and the succeeding sections is to provide the manner in which this liability may be enforced, and not to extend the liability. The language of § 32, “ whose claim has not been presented to the Probate Court, or if presented has not been allowed as provided in chapter ninety-seven,” taken literally, would include the case of a creditor having a debt for which provision is made in chapter ninety-seven, but who has neglected to avail himself of that provision. But, thus construed, it would be inconsistent with § 31. We are, therefore, of opinion that § 32 was intended to be limited to rhe eases of creditors who have not presented their claims to the Probate Court because not within the provisions of the ninety-seventh chapter, or, if within such provisions, whose claims have been presented and disallowed; and that it does not extend the liability of heirs, devisees or legatees to debts which, being within those provisions, have not been presented under them to the Probate Court.
The question in this case then is, whether the plaintiff’s debt is a debt of the deceased “ for which provision is not made in chapter ninety-seven.” The testator died in April 1875. The first and final account of the executrix of his will was filed January 2, 1876, and was allowed by the court. The note in suit was signed by the deceased, and became payable on July 18, 1877. At the death of the testator, it was a debt due by him payable in the future. A right of action did not accrue upon it within two years after the giving of the administration bond oil May 24,1875. Such a debt is within the Gen. Sts. c. 97, § 8,
The plaintiff had the right to present his claim to the Probate Court; in other words, provision for his debt is made in c. 97; and, as he neglected to avail himself of this provision, it follows that he cannot maintain an action against the heirs, next of kin, devisees or legatees of the deceased debtor.
Judgment for the defendant.