Lariviere v. Lariviere

• Decision Date: 29 December 1939
• Citation: 24 N.E.2d 659,304 Mass. 627
• Parties: LARIVIERE v. LARIVIERE et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

304 Mass. 627

24 N.E.2d 659

LARIVIERE

v.LARIVIERE et al.

Supreme Judicial Court of Massachusetts, Barnstable.

Dec. 29, 1939.

Proceeding between Olive Lariviere, administratrix of the estate of Louis Lariviere, deceased, and Wilfred Lariviere and others, wherein Olive Lariviere, administratrix, sought to establish claims against the estate upon notes executed by deceased. From a decree allowing the claims upon three notes, persons interested in the estate appeal.

Affirmed.Appeal from Probate Court, Barnstable County; Campbell, Judge.

P. M. Swift, of Hyannis, for petitioner.

S. H. Burrell, of New Bedford, for appellants.

FIELD, Chief Justice.

Olive Lariviere, administratrix of the estate of her husband, Louis Lariviere, late of Barnstable, deceased, claiming debts due her from said estate upon certain promissory notes filed in the Probate Court, under G.L.(Ter.Ed.) c. 197, § 6, a statement of her claims in writing. The parties did not agree upon an arbitrator. See section 7. After a hearing by the court, a decree was entered allowing said claims upon three promissory notes of the deceased, payable on demand to the order of the claimant, dated respectively January 25, 1932, May 13, 1932 and May 21, 1932-the first and third being expressed to be with interest. Persons interested in the estate appealed. The judge made a report of material facts and the evidence is reported.

There was no error.

According to the findings of fact made by the judge and embodied in the report of material facts, the deceased gave the promissory notes the claimant on the dates thereof, respectively, for money then lent by the claimant to the deceased; and the claimant and the deceased were married to each other in August 11, 1934. The evidence reported amply supports these findings, and there is no contention to the contrary. The deceased, therefore, became liable to the claimant on the notes and continued to be liable thereon up to the time of the marriage. The marriage, however, suspended the right of the claimant to enforce this liability, but did not extinguish it or render the notes void. Since the notes were valid when given, in the absence of any defence thereto other than the marriage they can be enforced by the claimant against the estate of the deceased. Martin v. Martin, 146 Mass. 517, 518, 16 N.E. 413;Crosby v. Clem, 209 Mass. 193, 194, 95 N.E. 297;Giles v. Giles, 279 Mass. 284, 285, 181 N.E. 176.

The appellants' sole contention is that recovery by the claimant is barred by the statute of limitations. The burden of proving that process was sued out within the period of limitations was on the claimant. McCarthy v. Simon, 247 Mass. 514, 519, 142 N.E. 806;Breen v. Burns, 280 Mass. 222, 228, 182 N.E. 294. The judge found, however, that a payment of interest on each note was made before the marriage and within six years of the filing of the claim based thereon, and that such payments interrupted the running of the statute. These payments were not indorsed on the notes. The claimant, however, testified to such payments to her by the deceased. Her testimony, if believed, was sufficient to support a finding that the payments were in fact made and, in the absence, as here, of anything to the contrary, such payments amounted to acknowledgments of liability on these notes, respectively (including the note not expressed to be with interest), raising implied promises to pay them, and, consequently, interrupting the running of the statute. See G.L.(Ter.Ed.) c. 260, § 14; Foster v. Starkey, 12 Cush. 324, 327;Nutter v. Mroczka, Mass., 21 N.E.2d 979. See also Markiewicz v. Toton. 292 Mass. 434, 437, 198 N.E. 659. And see Bamfield v. Tupper, 7 Ex. 27; In re Rutherford, Brown v. Rutherford, 14 Ch.D. 687, 692. Proof of such payments may be made by any competent evidence, including testimony, of the payee as here, and a memorandum in writing is not required. Williams v. Gridley, 9 Metc. 482;Foster v. Starkey, 12 Cush. 324, 327;Gilbert v....