Treasurer & Receiver Gen. v. Sheehan

• Citation: 193 N.E. 46,288 Mass. 468
• Parties: TREASURER AND RECEIVER GENERAL v. SHEEHAN.
• Decision Date: 30 November 1934
• Court: United States State Supreme Judicial Court of Massachusetts

288 Mass. 468

193 N.E. 46

TREASURER AND RECEIVER GENERAL

v.SHEEHAN.

Supreme Judicial Court of Massachusetts, Suffolk.

Nov. 30, 1934.

Exceptions from Superior Court, Suffolk County; T. J. Hammond, Judge.

Action of contract by the Treasurer and Receiver General against Daniel J. Sheehan, executor of the will of Catherine Arnold, deceased. Finding for the plaintiff in the sum of $5,546.41, and defendant brings exceptions.

Exceptions overruled.

J. E. Warner, Atty. Gen., and J. L. Barron, Asst. Atty. Gen., for plaintiff.

H. Finn, of Boston, for defendant.

LUMMUS, Justice.

G. L. (Ter. Ed.) c. 123, § 96, contains provisions in force during the period in question from July 28, 1920, until January 5, 1932, whereby such sum, not exceeding a certain number of dollars a week, as may be determined by the department of mental diseases as the price for the support of an inmate of a state hospital for the insane, may be recovered by action in the name of the State Treasurer from such inmate or from his mother or other relatives.

The defendant is the executor of the will of Catherine Arnold, whose son Walter J. Carberry was an inmate of state hospitals for the insane from 1907 until the time of the trial. From July 28, 1920, until her death on January 5, 1932, the defendant's testatrix was of sufficient ability to pay for her son's support. During that period there was due for such support $5,118.29, no part of which was ever demanded from her during her lifetime, nor paid. After the appointment of the defendant as executor, demand was made upon him, and this action of contract was begun. He did not plead the statute of limitations. The trial judge, sitting without a jury, found that he was liable for the full amount claimed. The only point raised by his exceptions is that the cause of action did not survive the death of his testatrix.

The action was properly an action of contract. Originally Rev. St. 1836, c. 48, §§ 9, 11, provided for an action against the insane person himself, in which ‘the declaration may be in a general indebitatus assumpsit.’ St. 1856, c. 108, § 4, provided that payment of the support of inmates of state insane hospitals may be enforced against ‘any kindred obligated by law to maintain them * * * in the manner provided in like casses' by Rev. St. 1836, c. 48. St. 1857, c. 209, provided in similar cases for ‘an action of contract.’ Later statutes, beginning with Gen. St. 1860, c. 73, §§ 23-25, and St. 1870, c. 105 (compare St. 1886, c. 298, § 7), have omitted to describe the kind of action to be brought, but the practice has always been to bring actions of contract. Treasurer and Receiver General v. Sermini, 229 Mass. 248, 253, 118 N. E. 331;Smith v. Lee, 12 Allen, 510;Adams v. Ipswich, 116 Mass. 570. See, also, Madden v. Madden, 279 Mass. 417, 422, 181 N. E. 771.

At common law, all personal actions abated upon the death of one of the parties, whether the cause of action survived or not. Wilbur v. Gilmore, 21 Pick. 250, 252;Electric Welding Co. v. Prince, 195 Mass. 242, 260, 81 N. E. 306;E. S. Parks Shellac Co. v. Jones, 265 Mass. 108, 113, 163 N. E. 883. All the statutory modifications of this rule affect the survival of the cause of action as well as the survival of a pending action, for G. L. (Ter. Ed.) c. 230, § 1, provides that ‘An action which would have survived if commenced by or against the original party in his lifetime may be commenced and prosecuted by or against his executor or administrator.’ Union Market National Bank of Watertown v. Gardiner, 276 Mass. 490, 493, 177 N. E. 682, 79 A. L. R. 1512.

Many causes of action, as distinguished from pending actions, survived the death of one of the parties, even at common law. Otherwise there could have been no creditor of the estate of a decedent. In Mellen v. Baldwin, 4 Mass. 480, 481, Parsons, C. J., said, ‘Actions on contracts may be maintained by and against the executors and administrators of the original contractors.’ See, also, Stebbins v. Palmer, 1 Pick. 71, 78, 79,11 Am.Dec. 146; Hyde v. Skinner, 2 P. Wms. 196; note to Wheatley v. Lane, 1 Saund. 216. In Siboni v. Kirkman, 1 M. & W. 418, 423, Baron Parke said, ‘Executors are responsible on all the contracts of the testator broken in his lifetime, and there is only one exception with regard to their liability for contracts broken after his death; that is this, that they are not liable in those cases where personal skill or taste is required.’ See, also, Harrison v. Conlan, 10 Allen, 85;Drummond v. Crane, 159 Mass. 577, 35 N. E. 90,23 L. R. A. 707, 38 Am. St. Rep. 460;Brown v. Cushman, 173 Mass. 368, 53 N. E. 860;Stearns v. Blevins, 262 Mass. 577, 160 N. E. 417; Raymond v. Fitch, 2 Cr. M. & R. 588. The non-survival of causes of action for breach of promise of marriage rests on special grounds. Stebbins v. Palmer, 1 Pick. 71, 78, 79,11 Am. Dec. 146;Smith v. Sherman, 4 Cush. 408;Chase v. Fitz, 132 Mass. 359. Ordinarily the survival of a cause of action is mutual, and if it survives in favor of executors or administrators, it...