Baker v. Langley
| Decision Date | 15 December 1923 |
| Citation | 141 N.E. 671,247 Mass. 127 |
| Parties | BAKER, Public Adm'r, v. LANGLEY. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Superior Court, Bristol County; William A. Burns, Judge.
Bill by Charles L. Baker, Public Administrator, in charge of the estate of Phillip Joseph, deceased, against Henry J. Langley, administrator de bonis non with the will annexed of Abner G. Davol, deceased, to enjoin the prosecution of an action at law. There was a decree overruling a demurrer, and a final decree granting full injunctive relief, and defendant appeals. Affirmed.
Wood & Brayton, of Fall River, for appellant.
Baker, Thurston, Seagrave & Terry, of Fall River, for appellee.
It appears that one Phillip Joseph, an unmarried seaman, died intestate November 16, 1857, leaving no heirs in this commonwealth, and the defendant concedes that the plaintiff is the duly appointed administrator of his estate, although the date of the appointment is not disclosed by the record. G. L. c. 194. The intestate left as his only estate a deposit in a savings bank of ‘one hundred dollars,’ which with accumulated interest amounted on August 5, 1921, when the plaintiff was first informed of it, to $2,474.45. The bank book after the intestate's death remained in the possession of the testator, who died January 3, 1868. But neither he nor his executrix, nor legatees and heirs, attempted to obtain the money, although from time to time the book, which remained in their possession and control, was presented for the entry of accrued interest.
The defendant on July 18, 1922, brought an action of contract in the superior court against the plaintiff to recover for board and lodging alleged to have been furnished by the testator to the intestate, and to recover the amount of the deposit as a gift to the testator, and as money had and received to the plaintiff's use. The defendant in that case, plaintiff in the case at bar, demurred, and the case was pending on the demurrer when the defendant in that case brought in that court November 10, 1922, the bill in the case at bar, asking that the defendant in the case at bar, plaintiff in that case, be perpetually enjoined from prosecuting the action at law because of the inexcusable delay of the testator and those claiming under him to assert whatever rights they had against the estate of the intestate, or to the deposit. It is alleged that approximately 65 years having elapsed since the death of the intestate, and 54 years since the death of the testator, the plaintiff ‘is without means of satisfying himself as to the validity of the claim set forth in the declaration in the action at law, and has been advised that there is a reasonable doubt whether the statute of limitations may be urged therein as a defense.’ It also is found, even if the bank book at the plaintiff's request was submitted to him by counsel for the defendant under the condition that after examination it should be returned, that the deposit was property left by the intestate.
[1] The bill under the prayer for general relief can be maintained to recover possession of the bank book, his alleged right to which the defendant had not relinquished, and to determine whether the deposit is to be administered as the intestate's estate. Mitchell v. Weaver, 242 Mass. 331, 336, 136 N. E. 166, and cases collected.
[2][3] The main contention of the defendant under the demurrer in the case at bar, and under the requests for rulings which are before us on the appeal (Kennedy v. Welch, 196 Mass. 592, 83 N. E. 11;Cushman v. Noe, 242 Mass. 496, 136 N. E. 567), is, that the plaintiff has a complete and adequate remedy at law by pleading the statute of limitations, or by an equitable defense under G. L. c. 231, § 31. But to sustain any objection to the jurisdiction of the court on the ground of the adequacy of the remedy at law, it is settled by our decisions that it must be pleaded ‘without delay and at the earliest opportunity.’ It is neither raised by the demurrer nor stated in the answer, and this objection presented for the first time on the merits comes too late. Russell v. Loring, 3 Allen...
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