106 Mass. 347 | Mass. | 1871
This is a bill to redeem a mortgage given by Samuel A. Jewett, who died in December 1858. The mortgage was assigned to the defendant in July 1865 ; and she also claims part of the mortgaged premises under an assignment of dower. The plaintiff’s right to redeem is denied, and the title averred to be in the heirs of Jewett only.
The plaintiff claims to hold by deed from Clarence Jewett, administrator de honis non of Samuel A. Jewett, who sold the equity of redemption to him under a license from the probate court to sell for the payment of debts, granted upon a petition filed in June 1864.
The validity of the conveyance to the plaintiff under this license and sale is disputed, mainly on the ground that, at the time of the petition to the probate court for leave to sell, the debts originally due from the estate were barred by the statute of limitations, and the administrator therefore could not legally resort to the real estate of the intestate for their payment.
It appears in this case, that, when the license to sell was granted, the time limited for the commencement of actions against the administrator by creditors had expired. The widow of the intestate was originally appointed administratrix February 1, 1859, and gave bond on that day. She gave notice of her appointment within the time required, and administered the estate until her authority was extinguished by her marriage in September 1861. No suit was commenced, and no steps were taken by creditors, which under our statutes would fix the liability of the administratrix to answer their demands out of the assets within her control, at the expiration of the tv o years limited for the commencement of proceedings. No lien therefore remained upon the real estate which could be availed of under a license to sell. Aiken v. Morse, 104 Mass. 277.
The plaintiff relies upon the fact that a few days before the expiration of the two years the estate was represented insolvent; and claims that thereafter, as no action could be brought against the administratrix, the debts against the estate were not barred. But a representation of insolvency, and the appointment of commissioners, though it changes the proceedings by which the creditor must enforce his demand, does not suspend or defeat the operation of the statute. He must still commence proceedings within the time prescribed, either by suit at law, or by prosecuting his claim to the commissioners of insolvency for allowance. And further, in this case the representation of insolvency was in fact made so near the end of the time that the right of the creditor to commence an action was secured to him by the Gen. Sts, 2. 99, § 25, which gives that right if the insolvency is rot act”'
The claim of Luther Tarbell does not appear to have been presented and acted upon by the probate court, in accordance with the provisions of the Gen. Sts. c. 97, § 8. It is only in that mode that the lien of such a creditor can be preserved beyond the two years. It is not a case of “ new assets; ” Gen. Sts. c. 97, § 6; and the appointment of commissioners was too late to affect the question. The Gen. Sts. c. 97, § 8, and c. 99, §§ 5, 6, regulate the mode of proceeding in such cases; but do not change the general rule as to the time within which proceedings must be commenced in order to charge the real estate with a lien.
The proceedings of the administrator de bonis non under the license of June 1864 were void. No title to the equity of redemption was conveyed thereby to the plaintiff. It had then vested in the heirs, against whom alone a creditor may proceed, whose right of action accrued after the time limited for suits against an administrator. Gen. Sts. e. 101, §§ 31, 32.
Bill dismissed, with costs for the defendant.