Nochemson v. Aronson
| Decision Date | 24 May 1932 |
| Citation | 181 N.E. 188,279 Mass. 278 |
| Parties | NOCHEMSON v. ARONSON et al. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
OPINION TEXT STARTS HERE
Suit by Harry Nochemson against Sarah Aronson and others, executors under the will of Philip S. Aronson, deceased.
Decree dismissing the bill affirmed.
S. Frankel, of Jamaica Plain, for plaintiff.
S. L. Solomont, of Boston, for defendants.
This is a suit in equity brought in this court under G. L. c. 197, § 10. The bill alleges the death of Philip S. Aronson, of Boston, on January 11, 1930, leaving a will, the allowance of the will, and the appointment of the defendants and another as executors, the approval of their bonds on February 27, 1930, and due notice of their appointment, and the resignation of the other executor and acceptance of his resignation. The bill alleges, also, that the deceased was indebted to the plaintiff in the sum of $1,000 and interest thereon for money loaned by the plaintiff to the testator, as evidenced by a demand note of the deceased for $2,000, dated October 26, 1928, upon which $1,000 was paid; that since the death of the deceased the defendants have paid the plaintiff the interest on said indebtedness to February 28, 1931, leaving a balance due of $1,000 with interest from March 1, 1931; that the defendants ‘had notice of and acknowledged the said debt due from the deceased to the plaintiff within one year from the date of the approval of their bonds'; that they are still in process of administering the estate of the deceased and have not made any distribution thereof, and that the plaintiff ‘has not been culpably negligent in failing to prosecute his claim against the Estate within the time limited by Statute and that it would be inequitable not to allow the plaintiff to establish his claim against said Estate.’
The bill contains the further allegation: ‘That the respondents for themselves and as agents of the heirs of the said deceased with intent to defraud your complainant represented to your petitioner that all the property of the estate was in real estate and real estate mortgages and agreed with your petitioner that as soon as they sold any of the real estate or collected any of the mortgages they would pay your petitioner's claim; that until the sale of some of the real estate or collection of any of the mortgages they would pay your petitioner interest on his debt, and requested your petitioner not to force them to sell any of the real estate or to foreclose the mortgages as the market for real estate was bad; that the respondents did pay the interest as aforesaid to February 28th 1931 and that your petitioner relying upon the said agreement did not bring an action against the respondents within one year of the date of their approval of their bonds and that the respondents unknown to your petitioner did collect one or more of said mortgages within the one year but have not paid your petitioner.’
The plaintiff prays that judgment be entered in favor of him against the defendants as executors in the sum of $1,000 with interest from March 1, 1931, and that as such executors they be ordered to pay the plaintiff the amount of such judgment out of the estate of the deceased.
The defendants demurred generally and also on the special grounds that the bill fails to allege any fraud, accident or misrepresentation, or to set forth the representations made by the executors with sufficient particularity to form any basis for a cause of action. An interlocutory decree was entered sustaining the demurrer and thereafter, no amendment to the bill having been made, a final decree dismissing the bill. The plaintiff appealed from the final decree.
[1] Though no appeal was taken from the interlocutory decree sustaining the demurrer its correctness is open for consideration upon the appeal from the final decree. The final decree was founded upon and necessarily affected by the interlocutory decree. G. L. c. 214, § 27. Parker v. Flagg, 127 Mass. 28;O'Brien v. O'Brien, 238 Mass. 403, 408, 131 N. E. 177.
[2] The demurrer was sustained rightly.
By G. L. c. 197, § 9 (see now St. 1931, c. 417) the time limited for bringing actions against an executor or administrator who has given due notice of his appointment is ‘one year from the time of his giving bond,’ though the probate court may allow further time not exceeding two years from the time of the giving of such bond if application for such further time is made ‘before the expiration of one year from the time of the approval of said bond.’ See, also, section 1. Section 10, under which this suit is brought, provides that ‘If the supreme judicial court, upon a bill in equity filed by a creditor whose claim has not been prosecuted within the time limited by the preceding 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 him judgment for the amount of his claim against the estate of the deceased person; but such judgment shall not affect any payment or distribution made before the filing of such bill.’
The bill does not allege facts showing that the plaintiff was not ‘chargeable with culpable neglect’ in not prosecuting his claim within the time limited and that ‘justice and equity’ require the relief sought.
Apart from the alleged agreement between the plaintiff and the defendants the bill states no case for relief under the statute. The plaintiff's claim, being based upon a demand note, was actionable at all times during the period when the executors could be sued. So far as appears the plaintiff was not at any time absent from the commonwealth or under any personal disability to bring suit and did not rely upon any third person to protect his rights. That he had knowledge seasonably of the death of the testator and the appointment of the executors, and knowledge that his debt was due and that the short statute of limitations was applicable thereto, is not negatived. No relation of trust and confidence between the plaintiff and the defendants is alleged. Nothing in the nature of ‘accident’ is shown. See Tremont Trust Co. v. Burack, 235 Mass. 398, 402, 126 N. E. 782, 9 A. L. R. 1067. Nor do the allegations amount to a charge of fraud on the part of the defendants. The only representation by the defendants alleged in the bill is that ‘all the property of the estate was in real estate and real estate mortgages.’ It is not alleged that this representation was false. The only mistake of fact suggested is that...
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Mulligan v. Hilton
...to do so. Brown v. Anderson, 13 Mass. 201;Emerson v. Thompson, 16 Mass. 429, 432;Lamson v. Schutt, 4 Allen 359;Nochemson v. Aronson, 279 Mass. 278, 282, 181 N.E. 188;Gallo v. Foley, 296 Mass. 306, 5 N.E.2d 425. The effect of the statute in a case like the present being to bar the remedy rat......
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Cantor v. Newton
...any time during the one-year period set out in G.L. c. 197, § 9, as appearing in St.1954, c. 552, § 1. 13 See Nochemson v. Aronson, 279 Mass. 278, 279, 281, 181 N.E. 188 (1932). Contrast First Nat'l Bank v. Nichols, 294 Mass. 173, 178, 186, 200 N.E. 869 (1936). None of these particular plai......
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...open to question upon the appeal from the final decree. Harrell v. Sonnabend, 191 Mass. 310, 77 N. E. 764. See also Nochemson v. Aronson, 279 Mass. 278, 280, 181 N. E. 188;Canning's Case (Mass.) 186 N. E. 243. The demurrer was addressed to the bill as a whole, on the grounds of want of equi......
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Gibbons v. Gibbons
... ... decree was taken, its correctness is open for consideration ... upon the appeal from the final decree. G.L.(Ter.Ed.) c. 214, ... § 27. Nochemson v. Aronson, 279 Mass. 278, 280, 181 ... N.E. 188. See, also, ... [296 Mass. 90] ... Carleton & Hovey Co. v. Burns, 285 Mass. 479, 484, ... 189 ... ...