Eastman v. Allen

• Decision Date: 28 January 1941
• Citation: 31 N.E.2d 547,308 Mass. 138
• Parties: EASTMAN v. ALLEN.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

308 Mass. 138

31 N.E.2d 547

EASTMAN

v.ALLEN.

Supreme Judicial Court of Massachusetts, Suffolk.

Jan. 28, 1941.

Action of contract, commenced in municipal court, by Benjamin S. Eastman against Asa S. Allen, executor. The court found for plaintiff and from an order of the Appellate Division dismissing the report, the defendant appeals.

Affirmed.Appeal from Municipal Court of Boston, Appellate Division; F. D. Putnam, Judge.

Argued before FIELD, C. J., and DONAHUE, DOLAN, COX, and RONAN, JJ.

E. Russell Greenhood, of Boston, for plaintiff.

O. S. Allen, of Boston, for defendant.

DOLAN, Justice.

This is an action of contract in which the plaintiff seeks to recover for services and goods furnished by him, as an undertaker, for the funeral of the defendant's testate. The writ is dated October 14, 1939. The defendant appeared specially and filed an answer in abatement setting up that, as executor of the will of the deceased, he filed a petition in the Probate Court prior to the commencement of this action, ‘to wit, upon September 30, 1939,’ under the provisions of G.L.(Ter.Ed.) c. 197, § 2 ‘as amended,’ against the present plaintiff, seeking to have that court determine the validity of the debt for which the plaintiff brings this action; that service of said petition was made upon the present plaintiff before the commencement of this action; and praying that this action be abated. The plaintiff filed a motion that the answer in abatement be heard and overruled. After hearing, the judge, in effect, found the facts stated in the answer to be true. The parties agreed that ‘the present plaintiff intentionally did not appear nor file any answer in the probate proceedings.’ The judge further found that no action had been taken in that proceeding and overruled the answer in abatement, ruling that the prior pendency of the executor's petition in the Probate Court did not as matter of law prevent the plaintiff from bringing and maintaining the present action. The defendant then filed a ‘Special Appearance and Answer in Bar.’ The case was heard on the merits and the judge found for the plaintiff. The case now comes before us on the defendant's appeal from the order of the Appellate Division dismissing the report.

The only question presented for determination is the correctness of the ruling of the judge, which is set forth above.

G.L.(Ter.Ed.) c. 197, § 2, as amended by St.1933, c. 221, § 3, provides as follows: ‘Section 2. If an executor or administrator does not within six months after the approval of his bond have notice of demands against the estate of the deceased sufficient to warrant him to represent such estate to be insolvent, he may, after the expiration of said six months, pay the debts due from the estate and shall not be personally liable to any creditor in consequence of such payments made before notice of such creditor's demand; and if such executor or administrator is in doubt as to the validity of any debt which, if valid, he would have a right to pay under this section, he may, with the approval of the probate court, after notice to all persons interested, pay such debt or so much thereof as the court may authorize.'

The defendant states the issue for determination to be whether one having a claim for payment of funeral expenses for a deceased person may, after the Probate Court had jurisdiction over him with respect to that claim, oust it of that jurisdiction, though he does not wish a trial by jury, and insist that his claim be passed upon by a judge of a District Court instead of by a judge of the Probate Court. In the consideration of this question it must be conceded that by bringing his action in the Municipal Court the plaintiff, under G.L.(Ter.Ed.) c. 231, §§ 103, 141, 143, waived his right to trial by a jury.

It would serve no useful purpose to recite in detail the various arguments of the parties, some in the alternative, with relation to the status of claims for funeral expenses, and concerning whether under G.L. (Ter.Ed.) c. 197, § 2, jury issues may be framed in the Probate Court. It is settled that an action for funeral expenses, except as a claim therefor is preferred, G.L. (Ter.Ed.) c. 198, § 1, differs in no essential from an action for a debt due from the deceased, and that the estate of the deceased is just as...