Clark v. Holbrook

• Decision Date: 03 March 1888
• Citation: 16 N.E. 410,146 Mass. 366
• Parties: CLARK et al. v. HOLBROOK et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

146 Mass. 366

16 N.E. 410

CLARK et al. v. HOLBROOK et al.

Supreme Judicial Court of Massachusetts, Suffolk.

March 3, 1888

COUNSEL

N.C. & J.K. Berry, for plaintiffs.

This general form of demurrer is warranted where the demurrer goes to the entire ground of action, and, this form being adopted by the defendants, the plaintiffs have the right to so construe it. Chenery v. Holden, 16 Gray, 125; Regan v. Baldwin, 126 Mass. 486; Colt v Learned, 118 Mass. 380. See Pub.St. c. 151, § 2, cl. 6; St.1883, c. 223, §§ 2, 17; Pub.St. c. 167, § 43. See, also Put.St. c. 136, §§ 13, 26, 27; Waters v. Eddy, 8 Pick. 399; Grow v. Dobbins, 128 Mass. 271 Brooks v. Rice, 131 Mass. 409; Brooks v Rayner, 127 Mass. 269.

John V. Beal, for defendants.

If this action can be maintained at all, it must be under Pub.St. c. 136, §§ 26-32, inclusive. The presentation of the claim to the probate court, the order thereon, and the giving of the bond were proceedings which were then authorized by, and in conformity with, Gen.St. c. 97, § 8. The plaintiff Clark's intestate having obtained such a bond as Gen.St. c. 97, § 8, contemplates, thereafter no remedy would be afforded her upon the aforesaid claim, except by an action upon said bond. Gen.St. c. 97, § 10; Pub.St. c. 136, § 15. The plaintiff Clark's intestate having presented her alleged claim to the estate of Joel Holbrook, 2d, before said estate was fully administered, and the same having been allowed, and said bond taken, all as then provided under Gen.St. c. 97, § 8, the plaintiff Clark, as her administrator, cannot now recover the same claim of the heir of said Joel Holbrook, 2d. Pratt v. Lamson, 128 Mass. 528; Brooks v. Rayner, 127 Mass. 268; Bacon v. Pomeroy, 104 Mass. 583, 584; Spelman v. Talbot, 123 Mass. 489. The object of the twenty-seventh and succeeding sections of chapter 136, Pub.St., is to provide the manner in which the liability may be enforced, and not to extend the liability. Pratt v. Lamson, supra. It does not appear that the plaintiffs have been prevented by fraud, accident, or mistake from prosecuting their claims against the estate within the time limited by law, and therefore Pub.St. c. 136, § 10, has no application. If the plaintiff Clark cannot maintain this action, certainly the remaining plaintiffs cannot, since it is not shown that any judgment has ever been obtained against the estate of Ruth Holbrook upon their respective claims; and, had there been, these could only be satisfied through said Ruth Holbrook's administrator. Neither, in equity, can the remaining plaintiffs have any better right of recovery than said Clark has, as said administrator, since no privity of contract exists between them and Joel Holbrook, 2d, or his said heir.

OPINION

HOLMES J.

Joel Holbrook executed a bond to his mother, Ruth, conditioned for her support, and afterwards died in her life-time. Lemuel Clark was appointed his administrator, and, on Ruth's petition, was ordered to retain the money remaining in his hands, viz., $710.45, for her support, unless bond was given to expend the same in support of her, if necessary. Lydia Holbrook, guardian of Joel's only child, Flora, thereupon gave bond. The sum was expended for the purpose mentioned, but was not sufficient. Ruth died; Clark was appointed her administrator; and the question which is intended to be presented, and which counsel desire us to consider, is whether, as such administrator, he can reach the real estate of Joel in a suit against Joel's heir.

The fact that Clark, when appointed administrator of Ruth, the obligee, was already the administrator of Joel, the obligor, did not extinguish the bond, nor prevent a suit by Clark against Joel's heir for whatever sums Clark could not have appropriated to Ruth's support as Joel's administrator. Y.B. 12 Hen. IV. 21, pl. 11; Woodward v. Darcy, 1 Plow. 184, 185; Wankford v. Wankford, 1 Salk. 299, 304. See Cock v. Cross, 2 Lev. 73, 3 Keb. 116, and 1 Freem. 49. We are of opinion that Clark's right to proceed against Joel's heir was not extinguished by what took place in the probate court. Assuming that Gen.St. c. 97, § 8, (Pub.St. c. 136, § 13,) applies to such a case as this, that section looks to the executors retaining assets already in his hands. It does not contemplate the court's ordering him to sell real estate to meet the liability when it shall accrue. Still less does it contemplate such a sale to meet the chance of a liability which may never be incurred. Therefore it is not intended to bar a resort to the real estate, in case the personal estate is retained and exhausted.

Turning to the sections which regulate the liability of heirs, the right to recover against them is given by Gen.St. c. 101, § 32, to "a creditor whose right of action accrues after the expiration of said time of limitation, and whose claim has not been presented to the probate court, or, if presented, has not been allowed." Pub.St. c. 136, § 27, reads "whose claim could not legally be presented." Pratt v. Lamson, 128 Mass. 528. It is plain that a claim which could not be allowed or provided for in full, as it turns out, for the reasons which we have mentioned, is within the spirit, if not within the letter, of this section, and it is within the letter of section 31, (Pub.St. c. 136, § 26,) which expresses the general intent of the following provisions. By that section the heirs "shall be liable, in the manner provided in the...