Yarrington v. Robinson

• Decision Date: 01 April 1886
• Citation: 141 Mass. 450,6 N.E. 382
• Parties: YARRINGTON v. ROBINSON and others, Adm'rs.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

141 Mass. 450

6 N.E. 382

YARRINGTON v. ROBINSON and others, Adm'rs.

Supreme Judicial Court of Massachusetts, Suffolk.

April 1, 1886

COUNSEL

J.L. Powers, for plaintiff.

J.O Teele, for defendants.

OPINION

FIELD J.

Although the plaintiff's writ commands the sheriff to attach the goods or estate of the defendants, who are described as "administrators of the estate of George W. Simmons, late of said Boston, deceased," the declaration is that the defendants, "as they are administrators of the estate of George W. Simmons," owe the plaintiff according to the account annexed, and the account annexed is: "The estate of Geo. W. Simmons to Perry Yarrington, debtor." It is manifest that the suit is against the defendants in their capacity of administrators, and that, if the plaintiff obtained judgment, the execution for the debt or damages would run against the goods and estate of George W. Simmons deceased, in their hands as administrators, (Pub.St. c. 166 § 8,) and not against the goods, estate, and bodies of the defendants. The court found that the plaintiff rendered service beneficial to said estate, after the death of said Simmons, and before the appointment of the defendants as administrators, and that these services were rendered at the request of George W. Simmons, Jr., and it may be that George W. Simmons, Jr., is personally liable to the plaintiff for the value of the services. Even if it could be assumed that the plaintiff might have been permitted to amend his writ and declaration, so that the action should have become a suit against the defendants personally, and then could have obtained judgment against George W. Simmons, Jr., either by discontinuing against the other defendants, or under Pub.St. c. 171, § 5, yet the plaintiff did not ask leave to amend.

The court could not properly rule that the words in the writ and declaration designating the defendants "as they are administrators of the estate of Geo. W. Simmons deceased," were surplusage, because they characterized the action as one against the estate, and not against the defendants personally. So long as it was an action against the estate, in the hands of the defendants as administrators, they were all properly joined. The plaintiff proved no contract with George W. Simmons in his life-time, and none for the breach of which his estate could be taken in any action by the plaintiff, and therefore did not maintain his action. The...