Haven v. Smith
| Decision Date | 10 January 1925 |
| Parties | HAVEN et al. v. SMITH et al. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
OPINION TEXT STARTS HERE
Report from Supreme Judicial Court, Bristol County.
Bill under G. L. c. 197, § 10, by Frank E. Haven and others against Delia F. Smith and others to restrain defendants from depleting assets of estate of James F. Smith, deceased, and to reserve therefrom sufficient money to satisfy plaintiff's claim. Submitted on report. Bill dismissed.F. W. Mansfield, of Boston, for plaintiffs.
J. E. Crowley, of Boston, for defendants.
It is alleged in the bill and admitted by the answer that the plaintiffs, who are nonresidents, brought an action of contract against James F. Smith, domiciled in this Commonwealth, which was entered in the Superior Court for the county of Bristol on May 1, 1922. The single justice by whom the suit was heard finds that they had an enforceable claim ‘for the sum of $5,6000.’ But, Smith having died in August, 1922, his will was duly admitted to probate the following September, when the defendants were appointed executors. Due notice of their appointment was given, and an affidavit of notice was filed December 13, 1922. In September, 1923, the executors submitted their final account, and, without obtaining a decree of distribution, paid over the funds in their possession in accordance with the terms of the will. The action, however, was pending during these proceedings, and appeared on the trial list several times after Smith's death. It does not appear by whom the case put on the list, or why the trial was postponed. The plaintiffs had no knowledge of the defendant's death until March, 1924. It was then too late to summon in the defendants. G. L. c. 197, § 9; G. L. c. 228, § 4. See G. S. c. 97, § 5; P. S. c. 136, § 9; R. L. c. 141, § 9; St. 1914, c. 699, § 3; Wells v. Child, 12 Allen, 330, 331. The only remedy was bring the present suit under G. L. c. 197, § 10:
‘If the supreme judicial court, upon a bill in equity filed by a creditor whose claim has not been prosecuted within the time limited by the preceding section, deems that justice and equity require it and that such creditor is not chargeable with culpable neglect in not prosecuting his claim within the time so limited, it may give him judgment for the amount of his claim against the estate of the deceased person; but such judgment shall not affect any payment or distribution made before the filing of such bill.’
The material facts on which the granting of relief must depend are stated in the record as follows:
counsel ‘they would be glad to reciprocate.’ The firm of Lowney & Harrington were discharged by the executors from all connection with matters of James F. Smith; all the papers of James F. Smith in their possession after Smith's death by their direction were turned over to an attorney in New Bedford by the name of Gerrett Geils. They did not withdraw their appearance nor did they notify the clerk, the plaintiffs, or the plaintiffs' counsel of the death of Smith. Gerrett Geils did not enter his appearance in the case or give any notice. Gerrett Geils shortly thereafter became sick and died before the expiration of the special statute of limitations and was succeeded by present counsel who had no knowledge of the pendency of suit until March, 1924. * * * Bernard Smith knew that the action was brought against the testator and while there was no direct evidence showing that he knew the action was pending when the testator died, I find as matter of inference that he did know the action was pending a that time and when the account was filed. The defendants practiced no deceit or fraud on the plaintiffs, they did not mislead or deceive them, they did nothing, they simply remained silent, and by no word or action assured the plaintiffs that the testator was still alive or dead or that they would be paid.'
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