Nichols v. Pope

• Citation: 191 N.E. 387,287 Mass. 244
• Parties: NICHOLS v. POPE.
• Decision Date: 29 June 1934
• Court: United States State Supreme Judicial Court of Massachusetts

287 Mass. 244

191 N.E. 387

NICHOLS

v.POPE.

Supreme Judicial Court of Massachusetts, Suffolk.

June 29, 1934.

Appeal from Supreme Judicial Court, Suffolk County; Pierce, Judge.

Suit in equity by Mary Nichols, administratrix de bonis non of the estate of Samuel G. Nichols, against Arthur Wallace Pope, administrator. From an interlocutory decree and a final decree, plaintiff appeals.

Affirmed.

E. M. Shanley, of Boston, for appellant.

W. M. Brady, of Boston, for appellee.

RUGG, Chief Justice.

This is a suit in equity brought by the administratrix de bonis non of the estate of Samuel G. Nichols. The defendant demurred to the plaintiff's bill. From an interlocutory decree sustaining the demurrer and from a final decree dismissing the bill the plaintiff appealed. The facts alleged in the bill in substance are these: The plaintiff's intestate was mortally injured on January 4, 1923, by falling through an opening in an elevator shaft in a building leased to the defendant's intestate by reason of the negligence of the defendant's intestate in failing to protect that opening by an automatic gate. The plaintiff's intestate after severe conscious suffering died on January 21, 1923. The defendant's intestate was at the time the holder of a policy of insurance protecting him against liability for damage from such injury and death. After the death of the plaintiff's intestate an action was seasonably brought to recover damages for his conscious suffering and death by the administrator of the plaintiff's intestate against the defendant's intestate in his lifetime. During the pendency of that action the defendant therein died on August 27, 1924, and the defendant was appointed administrator of his estate on February 24, 1925. There is no allegation that due notice of his appointment was not given. The defendant knew of the pendency of that action at the time of his appointment. In January, 1926, that action was on the list for trial. At that time the administrator of the estate of Samuel G. Nichols had died and no administrator de bonis non had been appointed. These facts were stated to the court by the attorneys for the defendant in that action and upon motion made ex parte the action was marked ‘passed.’ When that motion was made the attorneys knew of the death of their client, the defendant in that action, but did not inform the court of that fact. They were acting for the estate of the deceased defendant and for his insurer. The attorneys then motified the attorney who had acted for the plaintiff in that action that the case had been marked passed because of the death of the plaintiff, a fact of which he was then ignorant, but making no statement touching the death of the defendant. Thereafter in March, 1926, the present plaintiff was appointed administratrix de bonis non of the estate of the plaintiff in that action. In June, 1926, suggestion of death of the defendant in that action was filed in court. The administrator of the defendant appearing specially filed a motion to dismiss that action, which was denied, but since the institution of the present suit that action has been dismissed.

It is plain that that action at law was barred upon the facts stated because of failure to cause the administrator of the defendant to appear and become a party to it within the time limited by statute. G. L. (Ter. Ed.) c. 228, §§ 4, 5. Brotkin v. Feinberg, 265 Mass. 295, 164 N. E. 85;Everett Trust Co. v. Waltham Theatre Amusement Co., 267 Mass. 350, 353, 166 N. E. 831. The cause of action therein described was barred against the defendant by the short statute of limitations. G. L. (Ter. Ed.) c. 197, § 9. The present suit is brought under G. L. (Ter. Ed.) c. 197, § 10. That section provides that if the Supreme Judicial Court upon a suit in equity ‘by a creditor whose claim has not been prosecuted within the time limited by the preceeding 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 judgment for the amount of the claim.

It is doubtful if the facts here alleged bring the case within the scope of that section. There was no failure to bring an action at law on the cause of action herein set forth. Such action was brought against the defendant's intestate during his lifetime and was pending for more than one year after the appointment of the defendant as administrator of his estate. The plaintiff did...