Bassett v. Drew

• Decision Date: 18 May 1900
• Citation: 57 N.E. 384,176 Mass. 141
• Parties: BASSETT v. DREW.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

176 Mass. 141

57 N.E. 384

BASSETT v. DREW.

Supreme Judicial Court of Massachusetts, Suffolk.

May 18, 1900

COUNSEL

Chas F. Chamberlayne, for appellant.

H. M Burton, for appellee.

OPINION

HAMMOND J.

It is recited in the preamble to St. 1788, c. 66, that theretofore executors and administrators had frequently suffered 'great loss and trouble by reason of demands brought against them after they have closed their accounts of administration and settlement of the estate they have administered is made among the heirs and devisees,' and that 'for remedy whereof as well as for the more speedy settlement of estates' the statute is passed. Prior to this statute there does not seem to have been any statute of limitations applicable only to claims against executors and administrators. See Dane, Abr. c. 29, art. 1. This statute set a time within which actions must be brought against an executor or administrator. It divided the obligations of the deceased into three classes: First, those due and payable within that time; second, those due and not payable within that time; third, all other obligations including those where the liability depends upon some contingency not happening within that time, and which might never happen. A claim of the first class not presented within the time was barred, and there could be no recovery against anybody. A holder of a claim of the second class could file his claim in the office of the probate court before the expiration of the time, and the judge of probate was directed thereupon to order the executor or administrator to retain in his hands assets to answer the demand, unless some one or more of the heirs or devisees should give sufficient security for the executor or administrator to respond to the demand. And in such case the executor or administrator was not allowed to hold the assets, and the remedy was against the estate of the deceased in the hands of the heirs or devisees, or their heirs or assigns. With certain changes and amendments not material to this discussion, the policy thus adopted has continued to the present time. St. 1791, c. 28; St. 1792, c. 33; Rev. St. c. 66, §§ 3, 5; Id. c. 70, §§ 13, 14; St. 1852, c. 294, § 1; Gen. St. c. 97, §§ 5, 8; Id. c. 101, §§ 31, 32; Pub. St. c. 136, §§ 9, 13, 26, 27. In speaking of this policy and the statutes, Shaw, C.J., in Hall v. Bumstead, 20 Pick. 2, 3, says: 'In this commonwealth the liability of heirs for the debts of an ancestor depends wholly upon statute, and is provisional only. * * * Here it is the policy of the law to make all property liable for all the debts of the deceased owner, and in the first instance to place it under the administration of an executor or administrator; and, in pursuance of the same policy, land is made assets, provisionally, in the hands of the administrator, after the personal property is applied.' And again, in the same case, on page 6, he says: 'By the policy and provisions of our laws, the remedy of the creditor upon the heirs or devisees of a deceased person is extremely limited. Every demand which can be made and enforced against the estate of a deceased person is to be pursued against the administrator, where it can be done; and the whole estate, personal and real, is, in effect, made assets in his hands to meet such claims.' See, also, Royce v. Burrell, 12 Mass. 399. In Pratt v. Lamson, 128 Mass. 528, it was held, in accordance with the plain reading of the statute, that a promissory note maturing after two years from the time of the giving of the bond by the executor is a debt for which provision is made under Gen. St. c. 97, § 8, now Pub. St. c. 136, § 13, and that the creditor, not having presented his claim to the probate court under that section, could not maintain an action thereon, under Gen. St. c. 101, § 31, against the legatees of the deceased. That case is decisive of this, unless a distinction can be made in favor of the plaintiff. The plaintiff, however, contends that where the personal assets do not appear to be sufficient to pay the claim, or where they are merely nominal, it would be useless to order the administrator to do that which he cannot do; that therefore an application under section 13 would be a useless and idle ceremony, which the law would not require; and that, as the claim could not thus be paid in full, it is a claim 'for which provision is not made in' the thirteenth section, and so is within Pub. St. c. 136, §§ 26, 27; and in support of his position he relies upon Clark v. Holbrook, 146 Mass. 366, 16 N.E. 410, and Forbes v. Harrington, 171 Mass. 386, 50 N.E. 641, but in neither of these cases was the question involved. Such a view of the thirteenth sect...