Johnson v. Clabburn

• Decision Date: 23 May 1924
• Citation: 144 N.E. 105,249 Mass. 216
• Parties: JOHNSON et al. v. CLABBURN. PHILLIPS et al. v. SAME.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

249 Mass. 216

144 N.E. 105

JOHNSON et al.

v.CLABBURN.

PHILLIPS et al.

v.SAME.

Supreme Judicial Court of Massachusetts, Suffolk.

May 23, 1924.

Appeal from Supreme Judicial Court, Suffolk County.

Suit in equity by Benjamin N. Johnson and others, and Harry F. Phillips and others, respectively, against Frederick W.Clabburn, administrator of the estate of George S. Clabburn, deceased. From final decrees, and interlocutory decrees sustaining demurrers to bills in equity, plaintiffs appeal. Affirmed.

See, also, 245 Mass. 47, 139 N. E. 498.

H. S. Davis, of Boston, for appellants.

C. H. Donahue, of Boston, for appellee.

CARROLL, J.

These are two appeals from final decrees entered after interlocutory decrees sustaining demurrers to bills in equity. They were brought under G. L. c. 197, § 10, to establish claims against the estate of George S. Clabburn, who died intestate April 23, 1919. The bills in equity were filed June 6, 1923. The bill in each case alleges that the defendant was appointed administrator September 10, 1919; that the intestate had no property at the time of his death, other than $137 in cash, an automobile which was sold for $500, certain bowling alleys, and other articles of personal property; and that the defendant gave notice of his appointment within three months thereafter. In the suit of Phillips and others against the defendant, it is alleged that the articles remaining on the plaintiffs' and the trustees' premises were sold, and the sums received therefor applied on the claims of the plaintiffs and the trustees. In the suit of Johnson and another against the defendant, it is alleged that a certain sum was received and applied to the intestate's indebtedness. In each bill the allegation is made that the defendant as administrator brought an action against the plaintiffs Harry F., William E., and Edward W. Phillips for the conversion of the articles sold by them; that the plaintiffs believed the defendants in the action of tort had a good defence to the action; that the indebtedness of the estate to them exceeded the value of the articles; that in the action by the administrator for the conversion of the goods, a verdict for the sum of $5,138.25 was rendered for the administrator;that the administrator had paid the sum of $369 in satisfaction of certain debts of the estate; that the estate had not been represented insolvent, and as no action was pending against the administrator when these bills were filed, any sums received from the present plaintiffs would be distributed among the next of kin.

The plaintiffs filed their bills June 6, 1923, more than three years after the defendant had been appointed administrator and had filed his bond. He gave due notice of his appointment. The plaintiffs are barred from maintaining an action at law against the defendant under G. L. c. 197, § 9, which provides that--

‘An executor or administrator, after having given due notice of his appointment, shall not be held to answer to an action by a creditor of the deceased which is not commenced within one year from the time of his giving bond for the performance of his trust.’

[1][2] The plaintiffs, however, seek relief under section 10 of the statute, on the ground that justice and equity require that their claims should be allowed; and that they are not chargeable with culpable neglect in not prosecuting their claims within the time limited. No fraud, misrepresentation or deceit was practised on the plaintiffs, they were not misled by the defendant, no accident or mistake is shown. There was no relation of trust...