Parsons v. Parsons

• Decision Date: 17 March 1893
• Citation: 67 N.H. 419,29 A. 999
• Parties: PARSONS v. PARSONS.
• Court: New Hampshire Supreme Court

29 A. 999

67 N.H. 419

PARSONS

v. PARSONS.

Supreme Court of New Hampshire. Coos.

March 17, 1893.

Exceptions from Coos county court Bill by James I. Parsons, as administrator of the estate of Hezekiah Parsons, against Clara L. Parsons, executrix of the will of George Parsons. Demurrer sustained, and plaintiff excepts. Exception overruled.

Bill in equity by the administrator of Hezekiah Parsons' estate against the executrix of George Parsons' will; alleging that George was indebted to Hezekiah; that George's estate was administered as insolvent; that the plaintiff's demand was presented to the commissioner, and disallowed; and that the plaintiff appealed seasonably, and gave due notice of the appeal, but accidentally failed to enter it at the proper term of court; and praying for judgment for the amount due. The defendant filed a demurrer, which was sustained, and the plaintiff excepted.

J. I. Parsons, for plaintiff. T. F. Johnson, for defendant.

CHASE, J. This suit is based upon section 27, c. 191, Pub. St., which provides that, "whenever any one has a claim against the estate of a deceased person which has not been prosecuted within the time limited by law, he may apply to the supreme court, at a trial term, by petition setting forth all the facts; and if the court shall be of the opinion that justice and equity require it, and that the claimant is not chargeable with culpable neglect in not bringing his suit within the time limited by law, they may give him judgment for the amount due to him; but the judgment shall not affect any payments or compromises made before the beginning or the proceedings." The demurrer raises the question whether the legislature intended that this section should apply to claims against estates administered in the insolvent course. The section was first enacted in 1872 (Laws 1872, c. 7, § 2), and was copied substantially from the Massachusetts statute (Laws Mass. 1861, c. 174; Laws 1863, c. 235). When the laws of Massachusetts were compiled and revised in 1881, section 2 of the act of 1861 was put in the chapter relating to the payment of debts, etc., of solvent estates, immediately following the section providing the limitation of actions against such estates, and is expressly referred to as containing one of the exceptions to the bar created by that section. Pub. St Mass. c. 136, §§ 9, 10. At the time of the passage of the act of 1861, there were provisions in the Massachusetts statutes for the appointment of commissioners to examine and allow claims against insolvent estates, and for appeals from their decisions, similar to those in force in this state. Gen. St. Mass. c. 99, §§ 2-4, 8-10; Pub. St. Mass. c. 137, §§ 2, 3, 9, 11-13. There was also the following provision: "Any person whose claim is disallowed by the commissioner, and who, for other cause than his own neglect, omits to claim or prosecute his appeal as before provided, may, upon his petition therefor to the supreme judicial court holden in any county be allowed to claim and prosecute an appeal in manner aforesaid, upon such terms as the court imposes, if it appears that justice requires a further examination of his claim; but no such petition will be sustained unless prosecuted within two years after the return of the commissioners and within four years after the date of the administration bond." Rev. St Mass. c. 68, § 13; Gen. St. Mass. c. 99, § 13; Pub. St Mass. c. 137, § 16. It is apparent that the act of 1861 was limited in its application to claims against solvent estates. The fact that the New Hampshire statute was copied from it is evidence of an intention to confine its application to claims of the same nature. Com. v. Harthett, 3 Gray, 450; Com. v. Taylor, 132 Mass. 261; Pratt v. Telephone Co., 141 Mass. 225, 227, 5 N. E. 307; Ryalls v. Mechanics' Mills, 150 Mass. 190, 22 N. E. 766. In this state, as in Massachusetts, the tribunal before whom claims against a solvent estate may be prosecuted and the procedure therefor differ essentially from those for the prosecution of claims against an insolvent estate. Creditors of an estate administered as solvent present their claims to the administrator, and, if they are not paid, prosecute them before the same tribunal and by the same procedure substantially as they would against the deceased, if living. Pub. St. c. 191. But "no suit shall be maintained against an administrator for any cause of action against the deceased, unless it is begun within three years next after the original grant of administration, exclusive of the time such administration may have been suspended, except in cases where he has retained estate in his hands for...