Carpenter v. Hadley

• Decision Date: 19 January 1920
• Citation: 108 A. 679
• Parties: CARPENTER v. HADLEY.
• Court: Maine Supreme Court

108 A. 679

CARPENTER

v. HADLEY.

Supreme Judicial Court of Maine.

Jan. 19, 1920.

Agreed Statement from Supreme Judicial Court, Waldo County, at Law.

Assumpsit by Ezra A. Carpenter against Herbert C. Hadley, as administrator of the estate of Charles H. Hadley, deceased. On agreed statement of facts. Judgment rendered for plaintiff for part of the amount sued for.

Argued before CORNISH, C. J., and SPEAR, HANSOM, WILSON, and DEASY, JJ.

Dunton & Morse, of Belfast, for plaintiff.

F. W. Brown, Jr., of Belfast, for defendant.

HANSON, J. This is an action of assumpsit on six promissory notes, and is before the court on report upon an agreed statement of facts, which, omitting full description of the notes in question, is as follows:

"Charles H. Hadley died November 9, 1900. At the time of his decease Ezra A. Carpenter was the legal owner and holder of the notes described in the writ, viz.: One note. .$40 and interest, dated May 1, 1905, payable on demand; one note, $100 and interest, dated May 20, 1905, payable on demand; one note, $110 and interest, dated May 22, 1905, payable in one year; one note, $60 and interest, dated December 28, 1905, payable in one year; one note, $60 and interest, dated December 28, 1905, payable in two years; one note, $50 and interest, dated December 28, 1905, payable in three years. These notes were all signed by Charles H. Hadley.

"The payments indorsed on said notes after the decease of said Charles H. Hadley were made by his widow.

"Herbert C. Hadley was appointed administrator of the estate of Charles H. Hadley, deceased, June 12, 1917, and filed in the probate court affidavit of notice of his appointment as such administrator on July 10, 1917.

"On August 28, 1917) the plaintiff delivered his claim, supported by affidavit as required by law, to F. W. Brown, Jr., attorney for said Herbert C. Hadley, administrator, and on the 4th day of January, A. D. 1919. filed his said claim, supported by affidavit, in due form in the probate court for said county of Waldo.

"The writ in this action is dated February 4, 1919. A real estate attachment was made thereon February 7, 1919, and the writ served on the aefendant February 10, 1919.

"Interest was paid on all these notes until May 12, 113, all said payments having been made by the widow of Charles H. Hadley.

"The defendant by way of brief statement pleaded the general statute of limitations, and relies upon the same as a defense to this action, and in his brief adds that 'the previsions of section 13, chapter 133, Public Laws of 1917, which adds section 109 to chapter 86, Revised Statutes, settles this case, if retroactive.'"

Upon the facts stated it appears that the administrator complied with the statute by filing the affidavit of notice of his appointment, and that the plaintiff delivered his claim to the administrator, and filed the same in the probate court as required by law. The action, then, is properly brought, and may be maintained, unless barred by limitation.

When this action was brought, the period of 18 months provided for in R. S. c. 86, § 95, amended by St. 1917, c. 133, for commencing suits against administrators bad elapsed.

This statute permits the bringing of actions within that period and "not afterwards, if barred by the other provisions hereof."

The other provisions referred to are those of the general six-year statute of limitations.

In case of the three notes which matured and actions on which accrued before; the debtor's death, the general limitation had expired in 1911 and 1912. As to those three notes, therefore, the plea of bar by limitation must prevail.

The plaintiff, however, is not debarred from now proceeding to collect the three lastmentioned notes.

In deciding a case of similar import and principle, but on a different state of facts, this court stated what, has been recognized as the proper procedure in this class of cases as follows:

"If the next of kin decline to administer, any creditor, if he can find property of ids deceased debtor, may have administration committed to some suitable person. If he prefers to await the action of the next of kin or others interested, he still has two years after the appointment of an administrator within which he may proceed, but no more, if his claim would be barred had his debtor remained alive." Lancey v. White, 68 Mc. 28.

A creditor...