McCooey v. New York, N.H. & H.R. Co.
| Decision Date | 30 October 1902 |
| Citation | 182 Mass. 205,65 N.E. 62 |
| Parties | McCOOEY v. NEW YORK, N.H. & H. R. CO. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Thayer & Rugg and Samuel B. Taft, for plaintiff.
Wm. C Mellish, for defendant.
The defendant contends that the appointment of the administrator was void because a public administrator had a statutory right, under Pub. St. c. 131 (Rev. Laws, c. 138), to take letters of administration upon the state of the deceased. But it was held in Emery v. Hildreth, 2 Gray, 228, where a similar contention was made, that in a suit between an administrator and a debtor of the deceased, and as between those parties, the appointment could not be drawn in question. The decision was upon the ground that the probate court, as also was the fact in the present instance, had jurisdiction to appoint some administrator; that the defendant, as here, had no legal right in the question who should be appointed, and no right to object to the appointment in the court of probate, and a fortiori none after it had been made; and that his rights could not be prejudiced by the appointment of a wrong person, because payment to or a judgment for or against such a person before the appointment was revoked would be a full protection to the debtor. Emery v. Hildreth has been cited often by this court and never with disapproval. See Jochumsen v. Bank, 3 Allen, 87, 92; Waters v. Stickney, 12 Allen, 1 11, 90 Am. Dec. 122; Pinney v. McGregory, 102 Mass. 186, 189; Merrill v. Insurance Co., 103 Mass. 245, 248, 4 Am. Rep. 548; City of Boston v. Robbins, 126 Mass. 384, 388; Bassett v. Crafts, 129 Mass. 513, 516; McKim v. Doane, 137 Mass. 195, 196; Miller v. Miller, 150 Mass. 111, 112, 22 N.E. 765. In three of these cases (City of Boston v. Robbins, Bassett v. Crafts, and McKim v. Doane), Emery v. Hildreth was followed by the court, in holding that the appointment of a trustee by a probate court having jurisdiction to appoint a trustee could not be impeached in an action brought by the trustee, or in a suit upon the trustee's bond. These decisions were made before the passage of St. 1891, c. 415, § 4 (Rev. Laws, c. 162, § 2), which enacts that the probate courts shall be considered courts of superior and general jurisdiction as regards all matters in which authority is given to them, and that enactment certainly takes nothing from the authority of the decisions cited. In our opinion, Emery v. Hildreth is a decisive authority against the contention of the present defendant.
Aside from this we are of opinion that the bill of exceptions shows a state of the evidence in which the ruling requested could not have been given. We assume, in favor of the defendant without so deciding, that the failure of the public administrator to apply for letters for more than seven months after the death of the deceased did not prejudice his right to take out letters...
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