Jones v. Herbert

• Decision Date: 05 May 1914
• Citation: Jones v. Herbert, 77 N.H. 282, 90 A. 854 (N.H. 1914)
• Parties: JONES v. HERBERT.
• Court: New Hampshire Supreme Court

90 A. 854

77 N.H. 282

JONES

v. HERBERT.

Supreme Court of New Hampshire. Grafton.

May 5, 1914.

Transferred from Superior Court, Grafton County; Pike, Judge.

Proceeding by Florentine A. Jones against Henry W. Herbert, administrator. Transferred from the superior court, after a trial by the court, on plaintiff's appeal from a probate decree denying his petition for the appointment of an administrator of the estate of Solomon Jones. Exception overruled.

Solomon Jones died in March, 1864, leaving a widow, Lavina, and three children, Greenleaf, Florentine, and Sarah. By his will, which was duly proved, he gave $1 to each of the children and a life estate in the residue to Lavina, with remainder to Greenleaf in fee. Lavina was named as executrix, but never qualified. She died in November, 1864. By her will, which was duly proved, Florentine and Sarah were each given $1, and the residue was left to Greenleaf, who was named as executor, but never qualified. Upon the decease of Solomon, Greenleaf assumed to act as his administrator, took possession of the estate, and paid the debts and legacies. After his mother's death he pursued the same course with respect to her property. No bond or inventory was filed in either estate. He died in May, 1908, leaving a will which gave his entire estate to his widow, Anna, who died in May, 1909, intestate. The defendant is administrator de bonis non of Greenleaf's estate.

The estates of Greenleaf and Anna are in process of settlement in the insolvent course. Florentine's claims against those estates have been disallowed by the commissioners, and appeals are now pending. The claims against Greenleaf's estate are: (1) For the principal and interest of money deposited by Florentine with Solomon, which came to the possession of Greenleaf; (2) for the proceeds of certain railroad stock which Florentine intrusted to Solomon, and which Greenleaf subsequently sold; (3) one-half of Solomon's estate, with accretions, or, in lieu thereof, damages for breach of a contract, made in 1876, whereby Greenleaf and Anna promised to leave all their property by will to Florentine, in consideration of his agreement not to enforce his claims against his father's estate. The claim against Anna's estate is for damages for breach of the same contract.

In the superior court, the grounds urged for the appointment of an administrator were that Florentine had a right of action against Solomon at the time of the latter's death, which survived and still exists, and that such administrator should be made party to the pending proceedings against the estates of Greenleaf and Anna. The court found that the plaintiff's delay in asking for the appointment of an administrator constituted laches, and that such appointment was not necessary in aid of the pending proceedings, and dismissed the...