Bullard v. Moor

• Decision Date: 04 March 1893
• Citation: 158 Mass. 418,33 N.E. 928
• Parties: BULLARD v. MOOR et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

158 Mass. 418

33 N.E. 928

BULLARD v. MOOR et al.

Supreme Judicial Court of Massachusetts, Middlesex.

March 4, 1893

COUNSEL

S. Hoar, for plaintiff.

R.M Morse and G.W. Parke, for defendants.

OPINION

HOLMES J.

This is a bill in equity, brought under Pub.St. c. 136, § 26 et seq. by the executor of the will of Caroline A. Wood against the heirs and next of kin of Charles Wood, to charge them on a contract made by Charles Wood in respect of the sum paid out in the suit of Wood v. Bullard, 151 Mass 324, 335, 25 N.E.Rep 67. There is no question that the sum which the present plaintiff was compelled to pay in that suit was a claim against which Charles Wood covenanted to protect Caroline. The main questions are whether this proceeding is open to the plaintiff, and, if it is, whether the defendants are entitled to go to trial on the sanity of Charles Wood at the time he made the agreement. There is also a question of the measure of damages.

Charles Wood covenanted four things: To protect Caroline Wood from a contract of hers, upon which her estate was compelled to pay in Wood v. Bullard; that no claim should be made under that contract against her or her estate; that no objection should be made on account of it to her will; and to procure a release to Caroline from her contractees. Charles Wood did not procure a release from all the parties with whom Caroline contracted, but she had the instrument in her possession, seemingly canceled, and heard nothing of any claim on it during her life, nor was any claim made until May 10, 1887, after the two-years statute had run against the estate of Charles. The suit of Wood v. Bullard was brought May 31, 1887. The decision of the single justice was against all the plaintiffs. That of the full court was against all the plaintiffs but two. The decision in favor of the claim of those two was not announced until April 1, 1890, when the administrators of Charles Wood had only $6,303.42 in their hands, and that decision was not in favor of the two in the capacity in which they sued; so that there was no valid claim made until an amendment was allowed, on November 21, 1890, at which date the administrators had fully administered. The claim was paid on May 20, and this suit was brought on May 21, 1891.

It is not argued, seriously, that the present claim against the heirs was barred by the running of the two-years statute. The covenant to protect Caroline Wood was a distinct obligation, (Badger v. Titcomb, 15 Pick. 409, 413,) which was not broken until long after the two years had elapsed. Valentine v. Wheeler, 122 Mass. 566, 568; Aberdeen v. Blackmar, 6 Hill, 324. But it is said that under Pub.St. c. 136, § 13, the plaintiff might have presented his claim to the probate court, and might have obtained an order that Charles Wood's administrators should retain assets to satisfy it, and that a neglect to take that proceeding is a bar to a suit against the heirs under section 26 et seq. Pratt v. Lamson, 128 Mass. 528. In Ames v. Ames, 128 Mass. 277, it was held that Gen.St. c. 97, § 8, did not apply to a contract like this, while it still was uncertain whether anything ever would be due under it; and, if that case applies to the corresponding section of the Public Statutes, it governs this. But it is said that the amendment incorporated from the statute of 1879, c. 71, corrects that decision. As it reads now, "a creditor of the deceased" may present his claim, and if it appears "that such claim is, or may become, justly due," the court is to order assets to be retained. The words, "or may become," have been inserted.

But the statute must be construed reasonably. It cannot have been intended to enable any one who has an outstanding contract, made by a deceased person, to suspend the settlement of the estate indefinitely, without regard to the probability of anything becoming due upon the contract, and when it still is impossible for the probate court to form any estimate of what amount should be retained as "sufficient to satisfy the same," in the words of the statute. The meaning of the word "creditor," retained from the General Statutes, has not been changed so far as that. Furthermore, although we do not rely on this circumstance as sufficient in itself, if the plaintiff might have applied to the probate court, still, at the earliest date when he had the slightest reason for doing so, his claim could not have been provided for in full; and the amount to be reserved, if any, was a pure matter of speculation, and remained so until the estate was fully administered. See Wood v. Bullard, 151 Mass. 324, 332, 25 N.E. 67. We are of opinion that the plaintiff was not barred of his present proceeding by his failure to apply under section 13. See Clark v. Holbrook, 146 Mass. 366, 368, 16 N.E. 410.

The next question is whether the defendants have a right to try the sanity of Charles Wood. It is found as a fact that his administrators ratified his agreement, if administrators can ratify a reasonable agreement of an insane intestate. This means, of course, that they effectually ratified, subject to the question of law mentioned. The grounds of the finding are not stated, and we cannot inquire whether they had sufficient knowledge, as we are asked to do. There is no doubt, and it is not disputed, that administrators can ratify such a contract. For that purpose, they represent the persons of their intestate, restored to sanity. Wood v. Bullard, 151 Mass. 324, 329, 25 N.E. 67.

But it is said that, although the ratification estops the administrators, it is of no effect against the heirs. Ratification is not estoppel, but it is election,--a different conception. Metcalf v. Williams, 144 Mass 452, 454, 11 N.E. 700. When it operates, it operates, not against the person ratifying, but on the contract, making it as if perfect from the beginning. See Dempsey v. Chambers, 154 Mass. 330, 332, 28 N.E. 279. It would be anomalous if the contract could...