Brackett v. Chamberlain

• Citation: 98 A. 933
• Parties: BRACKETT v. CHAMBERLAIN.
• Decision Date: 23 October 1916
• Court: Maine Supreme Court

98 A. 933

BRACKETT

v. CHAMBERLAIN.

Supreme Judicial Court of Maine.

Oct. 23, 1916.

Exceptions from Supreme Judicial Court, Lincoln County, at Law.

Petition by Wilbur G. Brackett for leave to bring action against Henry H. Chamberlain, administrator of Robert A. Brackett, deceased. To an order overruling defendant's motion to dismiss the petition, defendant excepts. Exceptions overruled.

Argued before SAVAGE, C. J., and CORNISH, KING, BIRD, and PHILBBOOK, JJ.

George A. Cowan, of Damariscotta, for plaintiff. J. W. Brackett, of Boothbay Harbor, for defendant.

BIRD, J. This is a petition for leave to bring an action for money had and received against the defendant, as administrator of the solvent estate of Robert A. Brackett, deceased. The defendant filed a motion to dismiss the petition, which the presiding justice overruled. The case is here upon the exceptions of the defendant to this ruling.

It appears from the record before this court that the petitioner duly presented his claim for $423, against the solvent estate of intestate to his administrator, who, deeming the claim to be exorbitant, unjust, or illegal, made application for the appointment of commissioners as provided in section 54 of chapter 66, R. S. (section 53, c. 64, R. S. 1883). After due proceedings had, the commissioners appointed, awarded the petitioner or claimant, the sum of $323, and their report was filed and accepted. The administrator seasonably filed and perfected upon his part an appeal from the decision of the commissioners. The claimant, upon receiving the statutory notice of the appeal, immediately notified his counsel by letter and directed him to take appropriate action. The letter was never received by counsel, and when he did receive notice of the appeal and the instructions of his client, the period within which an action for money had and received could be brought had elapsed. Thereupon the claimant filed his petition as under section 15 of chapter 68, R. S., asking leave to commence an action as therein provided.

The provision of statute allowing the appointment of commissioners upon exorbitant claims against solvent estates had its origin in chapter 115, Pub. Laws 1859. By it, it was enacted that:

"Sections five, six, seven, eight, eleven, twelve, thirteen, fourteen and fifteen of chapter sixty-six of the Revised Statutes (1857) shall apply to such claims and the proceedings thereon."

Sections 5 to 8, both, inclusive, of chapter 66, R. S. 1857, regarding insolvent estates, refer to the proceedings before the commissioners, while the remaining sections—11 to 15, both inclusive—gave a right of appeal from decisions of such commissioners, and regulated the proceedings thereon. These sections comprised all the provisions respecting appeals at that time to be found in the chapter of the Revised Statutes relating to insolvent estates. While the last-enumerated sections provided for the granting of leave to a claimant, who, by accident or mistake, had omitted to give seasonable notice of an appeal or after notice, had omitted further to prosecute his appeal, to commence an action within a certain period, neither of these sections gave the claimant the right to ask leave to bring such action where, upon the appeal of the administrator or any other interested party, the claimant had by accident or mistake omitted to bring such action. In 1872 (Pub. Laws 1872, c. 36) an act entitled "An act relative to claims against insolvent estates" was passed by the Legislature, which has become, without material change, section 15 of chapter 66, R. S. 1883, and of chapter 68, R. S. 1903.

It gives the claimant who has omitted to bring his action the same right to ask leave of the Supreme Judicial Court by petition to bring his action for money had and received in case of appeal by the administrator, etc., as in case of his own appeal.

Neither section 53 of chapter 64, R. S. 1883, nor section 54 of chapter 66, R. S. 1903, relating to the appointment of commissioners to consider exorbitant claims against solvent estates, made section 15 of chapter 66, R. S. 1883, or section 15 of chapter 68, R. S. 1903, by express terms applicable to such claims.

No reason is perceived why they should not. Indeed there is every reason why they should. The evident intent of the Legislature of 1859 was to make all the provisions of the chapter of the Revised Statutes regarding appeals from the decisions of commissioners on claims against insolvent estates applicable to appeals from the like decisions on exorbitant claims against solvent estates. All then existing were made so. The act of 1872, c. 36, was to repair an omission in the matter of appeal from decisions of the former class. It was in effect an amendment of the provisions regarding appeals. State v. Chadbourne, 74 Me. 506, 508.

The amendment of section 12 and section 11 of chapter 66 of the Revised Statutes of 1857, by chapter 201, Pub. Laws 1866-68, and chapter 113, § 10, Pub. Laws 1870, respectively, became a part of the respective sections, to which the public acts cited expressly referred, in the revision of the statutes made in 1871, and the amended sections were expressly made applicable to appeals from the decisions of commissioners on claims against solvent estates. R. S. 1871, c. 64, § 51.

The act of 1872, however, made no express reference to any section of the Revised Statutes, and in the revision of the statutes made in 1883 became a distinct section (15) of that portion of the chapter on insolvent estates regulating appeals. The commissioner on that revision omitted the new section (15) from those made applicable to appeals from the decisions of commissioners on claims against solvent estates (R. S. 1883, c. 64, § 53), while including those amended, as we have seen, in 1868 and 1870. See Resolves 1881, c. 26, resolve for revision and consolidation of Public Laws. Had the commissioner on the revision of 1883 made chapter 36 of the Public Laws of 1872 a part of section 13 of chapter 66 of his revision, where it can be cogently urged it should have been placed, it could not successfully be contended that the Legislature, adopting the revision, would have refused to make such section applicable to appeals from decisions of commissioners upon claims against solvent estates. The failure to include section 15 of chapter 66, R. S. 1883, in section 53 of chapter 64, R. S. 1883, was a clear case of accidental omission which it is the duty of this court to repair, although the same omission has been perpetuated in the revision of 1903. We conclude that section 15 of chapter 68, R. S. 1903, is...