W. A. Emerson's Sons, Inc. v. Cloutman

• Decision Date: 07 April 1936
• Parties: W. A. EMERSON'S SONS, Inc., v. CLOUTMAN et al.
• Court: New Hampshire Supreme Court

184 A. 609

W. A. EMERSON'S SONS, Inc.,

v. CLOUTMAN et al.

Supreme Court of New Hampshire. Rockingham.

April 7, 1936.

Bill in equity by W. A. Emerson's Sons, Inc., against John F. Cloutman and others. Question of law raised by the exception to the denial of motion to dismiss transferred from the trial court in advance of further proceedings.

Case discharged.

Bill in equity, for relief under P.L. c. 302, § 28. The plaintiff is a corporation engaged in manufacturing shoes at Hampstead, and the defendants are executors of the will of Elmer F. Thayer, late of Farmington. The material facts set forth in the bill are as follows:

In 1925, the plaintiff ceased shipping goods to its customer the Amdur Shoe Company because of unpaid accounts. Thereupon, the testator agreed that if the plaintiff would continue shipments to this company he would guarantee payment therefor. Relying on this guaranty, the plaintiff made the shipments requested, and for the goods so shipped the Amdur Company was indebted to the plaintiff in the sum of $36,970.70, when, on January 29, 1926, that company was petitioned into bankruptcy.

It is conceded that the plaintiff proved its claim against the Amdur Company for the abovementioned sum in the bankruptcy court, and that proceedings in that court were still pending when the present bill was filed on November 28, 1927. The testator died on May 14, 1926, and his estate has not been distributed. The defendants qualified as executors on June 7, 1926.

The bill concludes with the following allegations; "* * * That by accident, mistake and misfortune on account of the involved financial status" of the Amdur Company "and the uncertainty as to the outcome of various suits at law and equity which have been brought by the trustee in bankruptcy" of that company "it has been impossible and is still now impossible to even estimate the amount of loss" sustained by reason of said guaranty and the plaintiff has been "prevented from presenting" its claim "to the executors of the will of the said "Elmer F. Thayer within one year from the date of their appointment." ?The defendants in their answer deny that the testator ever made the guaranty claimed, and, asserting that there is no adequate reason why the plaintiff should not have presented its claim to them within one year from the date of their appointment, pray that the bill be dismissed. In their "motion to dismiss," filed at the beginning of an informal hearing in the superior court, they allege that the action cannot be sustained because "no demand was exhibited to the administrator [executors] within one year after the original grant of administration," and because no demand against the estate was filed in the probate court. At this informal hearing the question of law raised by the exception to the denial of this latter motion was transferred by James, J., in advance of further proceedings.

Joseph Bearak, of Boston, Mass., and John L. Mitchell and Ralph G. McCarthy, both of Portsmouth, for plaintiff.

Arthur T. Smith, of Boston, Mass., and Hughes & Burns and G. T. Hughes, all of Dover, for defendants.

MARBLE, Justice.

Apart from the relief afforded by P. L. c. 302, § 28, the creditor of a deceased person cannot maintain an action on his claim against the decedent's estate unless his demand has been exhibited to the executor or administrator within one year after the original grant of administration. P.L. c. 302, § 3. And this rule applies to unaccrued and contingent demands, although special statutory provision (P.L. c. 302, § 6) is made for their payment. Watson v. Carvelle, 82 N.H. 453, 455, 136 A. 126; Cummings v. Farnham, 75 N.H. 135, 137, 71 A. 632 and cases cited.

Section 28 of chapter 302 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 superior court, 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, it may give him judgment for the amount due to him."

Relief under this section is not confined to those cases where the creditor has exhibited his demand to the executor within the year but has failed to bring his suit within the two-year period of limitation (P.L. c. 302, § 5), since the same cause which prevents the commencement of a suit may also prevent the...