Gould v. Whitmore

• Decision Date: 28 May 1887
• Parties: GOULD v. WHITMORE, Adm'r.
• Court: Maine Supreme Court

10 A. 60

79 Me. 383

GOULD

v. WHITMORE, Adm'r.¹

Supreme Judicial Court of Maine.

May 28, 1887.

On exceptions by defendant from supreme judicial court, Knox county.

Assumpsit on account annexed for services rendered defendant's intestate. The defendant pleaded that the action, as appeared upon the face of the papers, was barred by the general statute of limitations, and by the special limitation contained in Rev. St. c. 87, § 12, which is as follows: "Actions against executors or administrators, on claims against the estate, * * * shall, if brought after the time limited in the preceding section, be continued at the cost of the plaintiff until the next term of court, and for such further time, and on such other terms, as the court may order, unless, at least 30 days before commencement of suit, and within two years after notice given by him of his appointment, such claim was presented in writing and payment demanded, or was filed in the probate court, supported by affidavit of the claimant, or of some other person cognizant thereof, as provided in section sixty-two of chapter sixty-four, and such notice given as the court orders thereon. A tender of payment, or offer thereof filed in the case during the time of such continuance, shall bar the same, and the defendant shall recover his costs; and no action shall be maintained on such claim unless commenced during said two years, or within six months following, except as provided in the following sections."

The presiding justice ruled in favor of the plaintiff, and the defendant alleged exceptions.

A. P. Gould, for plaintiff. S.C.Whitmore, for defendant.

LIBBEY, J. This is an action of assumpsit to recover for professional services and disbursements according to the account annexed to the writ. Two grounds of defense were pleaded by the defendant: First, that the action was barred by Rev. St. c. 87, § 12; second, that it was barred by the general limitation of six years; and it was claimed that these limitations were apparent upon the face of the papers; but this contention was not sustained by the justice presiding. "We think the ruling correct. By the act of 1872, c. 85, no action could be maintained against an administrator on a claim against the estate unless such claim was first presented in writing, and payment demanded at least 30 days before the action was commenced, and within two years after notice was given by him of his appointment; and the right to commence such action was limited to...