Converse v. Johnson

• Decision Date: 07 January 1888
• Citation: 14 N.E. 925,146 Mass. 20
• Parties: CONVERSE v. JOHNSON.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

146 Mass. 20

14 N.E. 925

CONVERSE v. JOHNSON.

Supreme Judicial Court of Massachusetts, Middlesex.

January 7, 1888

COUNSEL

J.W. Johnson, for plaintiff.

This action was brought on June 19, 1886, within two years of the grant of letters of administration on the estate of Mary F Hart to the defendant. Pub.St. c. 136, § 9; Id. c 197, § 12; Hill v. Mixter, 5 Allen, 28. The provisions of Pub.St. c. 197, § 11, do not avail against this action. The visit of Mary F. Hart in this commonwealth after the note was given, though known to Marshall Barrett, was not such a coming into the commonwealth as will enable this court to say, as a matter of law, that the statute then began to run, and continued to run. The defendant's appointment as administrator of the estate of Mary F. Hart first gave jurisdiction in this commonwealth to an action upon this claim. The provisions of Pub.St. c. 197, § 12, do not avail against this action. A just construction of this section will not require the plaintiff's administrator to bring his action within two years of his appointment. The section was enacted to extend, and not to restrict, the time within which such actions may be brought. Gallup v. Gallup, 11 Metc. 445. No action could have been brought against the defendant administrator within one year of his appointment (Pub.St. c. 136, § 1;) so that the plaintiff administrator was unable to bring this action within two years of his appointment. The plaintiff administrator, or his intestate might perhaps have had administration of the estate of Mary F. Hart committed to some suitable person, but if they preferred to await the action of the next of kin or others interested, they could do so without prejudice to their right to proceed within two years after the appointment of a defendant administrator. But the provisions of Pub.St. c. 197,§ 12, avail in favor of this plaintiff. Hill v. Mixter, supra.

E.F. Johnson, for defendant.

The note in the suit specifies no time of payment, and, although it provides for the payment of interest annually, is yet, in legal effect, a note payable on demand, (Johes v Brown, 11 Ohio St. 601;) and "a promissory note payable on demand is due as soon as it is given. An action may be brought upon it immediately, without demand, and the statute of limitations begins to run against it from its date," (Shute v. Bank, 136 Mass. 487.) The fact that Mary F. Hart, the maker of the note, was on the day of the date thereof, and from that time up to her decease, a resident of another state, brings the case, to be sure, within the provisions of Pub.St. c. 197, § 11, and "the time of her absence shall not be taken as part of the time limited for the commencement of the action." See Langdon v. Doud, 6 Allen, 425. The defendant submits that the fact of Mary F. Hart coming into this commonwealth, under the circumstances which existed in this case, caused the statute of limitations to begin to run, under Pub.St. c. 197, § 11, and the decision in Whitton v. Wass, 109 Mass. 40. In Milton v. Babson, 6 Allen, 322, the court held that a person who was a resident of another state, and who had visited this state occasionally, and less than six years in all, since the cause of action accrued, could not successfully sustain the plea of the statute of limitations. The phrase "comes into the state," as used by the court, merely means personal presence here, and does not mean come here to reside, or to gain a domicile; for, if this were so, then the latter portion of the opinion would not be true, for a subsequent absence would not be deducted, as has been held in the case of Whitton v. Wass, supra, and Langdon v. Doud, 6 Allen, 423. The decision in Rockwood v. Whiting, 118 Mass. 337, is but an affirmation of that of Milton v. Babson, and does not hold that the statute did not begin to run at all, but that, on the facts, it had not run the requisite period of time to complete the bar. The statute of limitations having begun to run prior to Mrs. Hart's death, it follows that it would continue to run after her decease. Engine Co. v. Schumacher, 109 Mass. 416. The defendant submits that the plaintiff cannot bring himself within the enabling provisions of Pub.St. c. 197, § 12, for (1) Marshall Barrett was not, at his decease, "a person entitled to bring the action." Bates v. Kempton, 7 Gray, 382; Ostrom v. Curtis, 1 Cush. 461. (2) Marshall Barrett did not die "before the expiration of the time herein limited." (3) This action was not "commenced by the executor or administrator of such deceased person at any time within two years after the grant of letters testamentary or of administration." Hill v. Mixter, 5 Allen, 27; Gallup v. Gallup, 11 Metc. 445; Holmes v. Brooks, 68 Me. 416. If the facts in the case at bar were changed in this: that the plaintiff had begun his suit within two years after his appointment as administrator of the creditor's estate, but more than two years after the defendant's appointment as administrator of the debtor's estate, and it were also a fact that the latter had given no notice of his appointment, so that what is known as the "short statute of limitations" against executors would not apply, it is certain that the plaintiff could not then maintain his suit. Engine Co. v. Schumacher, 109 Mass. 416. The late case of Lancey v. White, 68 Me. 28, is conclusive on the case supposed; the Maine statute being identical with ours. Now, then, if by the provisions of section 12 the period of time within which an action may be commenced against the administrator of a debtor's estate is limited to two years from the date of his appointment, it must follow that, when exactly the same language is used in the same section, the time within which the administrator of the creditor's estate can bring suit must be equally limited. If the auxiliary verb "may" has been decided by the courts to mean "shall" for the one contingency, it certainly must be so construed for the other. The preceding argument assumes that the plaintiff's suit is barred by Pub.St. c. 197, exclusive of section 12, and with that as a premise, aims to prove that the plaintiff cannot maintain this action. But section 12 is of itself a statute of limitation; and the repeal of the final clause, "and not afterwards, if otherwise barred by the provisions of this chapter," in Gen.St. c. 155, § 10, by the enactment of Pub.St. c. 197, § 12, renders it necessary for an executor or administrator to begin suit in all cases within two years of his appointment. So that if no other objection held, and this suit were not barred by the...