212 Mass. 416 | Mass. | 1912
The demurrer was rightly overruled. By R. L. c. 141, §' 10, a creditor whose claim has not been prosecuted within two years after an executor or administrator has published notice of his appointment under § 9, may have relief in equity for the amount against the estate, if found not chargeable with culpable neglect in failing to enforce it before the statutory bar had been established. Ewing v. King, 169 Mass. 97. Powow River National Bank v. Abbott, 179 Mass. 336. McMahon v. Miller, 192 Mass. 241.
It is averred in the bill of complaint that the defendant’s testator, a constable qualified to serve civil process, attached in an action against them certain personal property of the plaintiffs, which was released upon their depositing with him sufficient money to cover the amount of damages demanded in the writ. The money by R. L. c. 167, § 124, having been held to await the result of the litigation, the termination of the action by the entry of neither party dissolved the attachment, and it was payable to the plaintiffs on demand. Radclyffe v. Barton, 154 Mass. 157, 158. But pending the proceedings the attaching officer died testate, and the defendant had been appointed executrix, and only eight days appear to have remained after the disposition of the case before the plaintiffs’ claim would be barred. A demand by the plaintiffs was necessary before an action could be begun, and although promptly made the defendant referred them to her counsel, and to a surety company which had become surety on the official bond of her testator. Weston v. Ames, 10 Met. 244. King v. Rice, 12
But the plaintiffs cannot have judgment unless the claim would have been enforceable against the defendant as executrix if sued within the prescribed period of two years. Spelman v. Talbot, 123 Mass. 489, 493. The action is not brought on the testator’s official bond to recover the penalty for breach of the condition and to obtain execution for the amount due. R. L. c. 173, § 6, cl. 11; c. 172, §§ 9, 10. It is instituted for money had and received to the plaintiffs’ use after the lien of the attachment expired. Before the cause of action accrued the estate however had been represented insolvent and commissioners had been appointed under R. L. c. 142, and by the express provisions of §§ 30-32, the defendant was no longer liable to suit by creditors of the estate. Herthel v. McKim, 190 Mass. 522, 524.
Nor can the suit be prosecuted for the purpose of obtaining a special judgment which will, enable the plaintiffs to compel the surety to make reimbursement. See Todd v. Bradford, 17 Mass. 567; Calder v. Haynes, 7 Allen, 387; Tracy v. Warren, 104 Mass. 376; Hayes v. Nash, 129 Mass. 62; Fall River v. Riley, 138 Mass. 336; S. C. 140 Mass. 488; Crocker v. Buttrick, 187 Mass. 461, 462. A creditor under certain conditions specified in the R. L. c. 177, § 25, may have a special judgment against a bankrupt or insolvent who has given bond to dissolve an attachment, which will enable
The statute granting relief in equity cannot be construed as superseding these provisions, or as recognizing a right of action by a creditor, where if suit had been promptly commenced, it must have failed by reason of the proceedings in the court of probate, and the bill must be dismissed.
Decree accordingly.