44 A.2d 433 | N.H. | 1945
The defendant's answer contains a denial of the allegations of the plaintiff's bill together with a brief statement to the *458
effect that no demand was made upon her as required by section 1 of chapter 302 of the Public Laws (R. L., c. 355, s. 1), and that suit was not brought "within two years next after the original grant of administration" (P. L., c. 302, s. 5; R. L., c. 355, s. 5). This answer is a sufficient plea in bar to the plaintiff's claim. Amoskeag Mfg. Co. v. Barnes,
The plaintiff contends, however, that the sections above cited do not apply to the maintenance of an action involving a trust relationship such as that here alleged to exist.
It is true that there are cases which hold that where one seeks to recover from the representative of an estate specific property alleged to have been held in trust by the decedent, he is not seeking payment of a claim from the assets of the estate and is not obliged to present his claim under a statute requiring claims to be presented to the executor or administrator before suit. See In re Dutard,
The purpose of our statutory provisions relating to demand and to limitation of actions is to secure the orderly and expeditious settlement of estates. Preston v. Cutter,
The present suit is brought for restitution of property alleged to have been held by the testator as a constructive trustee. "A cause of action for restitution may be barred by lapse of time because of the provisions of a statute of limitations." Restatement, Restitution, s. 148 (2). And where property is transferred to a person under such circumstances that he is under a duty to make restitution, and the right to restitution becomes thus barred, "the transferee no longer *459
holds the property upon a constructive trust." Id., s. 179, comment a. See also, American University v. Forbes,
Exceptions overruled.
All concurred.