307 A.2d 225 (Me. 1973), New England Merchants Nat. Bank v. McKinnon

Citation307 A.2d 225
Opinion JudgePOMEROY,
Party NameNEW ENGLAND MERCHANTS NATIONAL BANK v. Eleanor V. McKINNON, Executrix u/w/o Russell A. McKinnon.
AttorneyPreti & Flaherty by David M. Cohen, Portland, for plaintiff. Emmons & Emmons by David W. Emmons, Kennebunk, for defendant.
Judge PanelBefore DUFRESNE, C. J., and WEBBER, WEATHERBEE, POMEROY, WERNICK and ARCHIBALD, JJ.
Case DateJuly 13, 1973
CourtSupreme Judicial Court of Maine

Page 225

307 A.2d 225 (Me. 1973)

NEW ENGLAND MERCHANTS NATIONAL BANK

v.

Eleanor V. McKINNON, Executrix u/w/o Russell A. McKinnon.

Supreme Judicial Court of Maine.

July 13, 1973

Page 226

Preti & Flaherty by David M. Cohen, Portland, for plaintiff.

Emmons & Emmons by David W. Emmons, Kennebunk, for defendant.

Before DUFRESNE, C. J., and WEBBER, WEATHERBEE, POMEROY, WERNICK and ARCHIBALD, JJ.

POMEROY, Justice.

This appeal raises a knotty issue as to the sufficiency of a proof of claim against a decedent's estate filed in the Probate Court pursuant to 18 M.R.S.A. 2402.

Plaintiff, after having seasonably filed the proof, and after the Executrix had declined to honor it, filed a complaint in the Superior Court. A motion to dismiss the action was thereafter filed by the defendant. This motion was premised on the assertion that the proof of claim filed in the Probate Court was insufficient as a matter of law, both as to form and as to content. 1.

A Justice of the Superior Court, after hearing, granted the motion to dismiss after finding that the proof of claim was insufficient as a matter of law.

This appeal followed.

We sustain the appeal.

The proof of claim had attached thereto and made a part thereof, a contract of guaranty given to the plaintiff by the decedent guarantying payment of all liabilities, obligations and undertakings of the Harvard Development Corporation to sadi bank. The proof of claim further recited that as of the date of the death of the decedent the outstanding and unsatisfied indebtedness owed the bank by the Harvard Development Corporation was $101,710.92, and that 'no security for said claim was taken or exists and no credit is to be given in set off.' The entire agreement of guaranty between the plaintiff bank and the deceased was contained in the proof of claim. The guaranty is under seal and is dated September 7, 1965.

The undertakings of the deceased under the guaranty agreement are described in

Page 227

great detail. It is true there is nothing in the guaranty agreement describing what the liabilities of the Harvard Development Corporation are to the bank or the exact nature of the indebtedness incurred or to be incurred. The agreement does describe the guaranty as to payment in fulfillment

'. . . of all liabilities, obligations and undertakings of Harvard Development Corporation to said Bank, whether...

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2 practice notes
  • 337 A.2d 661 (Me. 1975), Ace Ambulance Service, Inc. v. City of Augusta
    • United States
    • Maine Supreme Judicial Court of Maine (US)
    • 15 Mayo 1975
    ...(emphasis in the original). 3 See also Cohen v. Bowdoin, Me., 288 A.2d 106 (1972); New England Merchants National Bank v. McKinnon, Me., 307 A.2d 225 (1973); Field, McKusick and Wroth, Maine Civil Practice, Vol. I, § 12:11. Here, as in Richards, the almost obvious issues concern broad princ......
  • 801 A.2d 996 (Me. 2002), AND-02-11, Vincent v. Estate of Simard
    • United States
    • Maine Supreme Judicial Court of Maine (US)
    • 9 Julio 2002
    ...as requiring substantial, not strict, compliance with the notice requirements for claims. 3 New England Merchs. Nat'l Bank v. McKinnon, 307 A.2d 225, 227 (Me.1973); Holmes v. Fraser, 140 Me. 81, 83, 34 A.2d 76, 76-77 (1943). In McKinnon, we explained that the statutory requirements are sati......
2 cases
  • 337 A.2d 661 (Me. 1975), Ace Ambulance Service, Inc. v. City of Augusta
    • United States
    • Maine Supreme Judicial Court of Maine (US)
    • 15 Mayo 1975
    ...(emphasis in the original). 3 See also Cohen v. Bowdoin, Me., 288 A.2d 106 (1972); New England Merchants National Bank v. McKinnon, Me., 307 A.2d 225 (1973); Field, McKusick and Wroth, Maine Civil Practice, Vol. I, § 12:11. Here, as in Richards, the almost obvious issues concern broad princ......
  • 801 A.2d 996 (Me. 2002), AND-02-11, Vincent v. Estate of Simard
    • United States
    • Maine Supreme Judicial Court of Maine (US)
    • 9 Julio 2002
    ...as requiring substantial, not strict, compliance with the notice requirements for claims. 3 New England Merchs. Nat'l Bank v. McKinnon, 307 A.2d 225, 227 (Me.1973); Holmes v. Fraser, 140 Me. 81, 83, 34 A.2d 76, 76-77 (1943). In McKinnon, we explained that the statutory requirements are sati......