Brown v. Pendergast

Metcalf, J. By the Gen. Sts. c. 128, § 11, “ when an executor or administrator dies or is removed from office during the pendency of a suit in which he is a party, the suit may be prosecuted by or against the administrator de bonis non ip like manner as if it had been originally commenced by or against such last administrator.” This provision was first made by St. 1817, c. 190, § 18, and has been in force ever since. Rev. Sts. c. 110, § 7. .And it was made, as were the provisions of St. 1812, c. 105, in consequence of the decisions in Grout v. Chamberlin, 4 Mass. 611, 613, (contrary to what was before supposed to be the law, 1 Dane Ab. 577,) that there was, by the common law, no privity between an executor and administrator de bonis non ; that the latter, therefore, could not maintain a writ of error to reverse a judgment recovered by the former ; that such judgment became ineffectual by the death of the former while it was unsatisfied; [428] and that a new action might be brought for the same cause of action, by the latter. And Parsons, C. J., said that the law was the same when an administrator recovered a judgment and died; that the succeeding administrator could not execute the judgment, but might bring a new action. There can be no doubt that the decisions would have been the same if the administrator de bonis non had been appointed upon the removal of the executor or former administrator; for there would have been the same want of privity as in the case of the death of either of them. Nor can there be any doubt that it necessarily follows from those decisions that an administrator de bonis non could not have prosecuted suits commenced by the deceased or removed executor or administrator. Hence the St. of 1817 provided not only, like St. 1812, that an administrator de bonis non might maintain a scire facias on a judgment recovered by an executor or administrator who had died or been removed, and might bring a writ of error to reverse such judgment, (which provisions are retained in the Gen. Sts. c. 128, §§ 13, 14,) but might also prosecute a suit brought by such executor or administrator, and pending when he died or was removed. When Sts. 1812 and 1817 were passed, the only cases in which authority to appoint administrators de bonis non was' given or recognized by previous statutes were those of .the death of an executor or former administrator, or of his removal which was the legal effect of granting a new administration. Anc. Chart. 434. Sts. 1783, c. 36, § 10; c. 24, § 19; and 1782, c. 25, §§ 2, 3. And for this reason these statutes mentioned those two cases only. But they repealed the common law as to want of privity between such administrators and those whom they succeeded, in all cases in which the appointment of such administrators was then authorized; and thereby a change in our law was effected, which Chief Justice Parsons, in 4 Mass. 612, had said was “ to be wished.” It was not until the passing of the Rev. Sts. c. 63, § 9, (reenacted in Gen. Sts. c. 101, § 4,) that the marriage of a female sole executrix or administratrix extinguished her authority, and authorized the appointment of an administrator de bonis non. [429] By the common law her husband became joint executor or administrator with her, which law was repealed in part, by St. 1783, c. 24, § 19. Wiggin v. Swett, 6 Met. 196. If she married after bringing a suit as executrix or administratrix, the suit abated as it did when she sued in her own right, and she and her husband might commence a new action. Swan v. Wilkinson, 14 Mass. 295. And the defendant insists that the present suit is abated by the marriage of the former administratrix, because the Gen. Sts. c. 101, § 4, do not authorize him, in terms, to prosecute it, and c. 128, § 11, authorizes administrators de bonis non to prosecute those suits only which were commenced by a deceased or removed executor or administrator. But the court are of opinion that the statute which first authorized the appointment of an administrator de bonis non in a case like this must be held to have conferred on him, when appointed, the same authority which had been given to like administrators appointed on the removal or death of other administrators, or of executors ; that the rule of the common law (which was in force when the cases of Grout v. Chamberlin were decided) was wholly annulled by Sts. 1812 and 1817. All the reasons which induced the passing of those statutes apply to this case, as all the mischiefs which they were intended to remedy would otherwise exist in this case, namely, delay in the settlement of estates, the loss of judgments already recovered, of attachments and of costs. If the plaintiff cannot prosecute this suit, he could not enforce a judgment against the defendant, if one had been recovered by the former administratrix. We are of opinion that although § 4 of c. 101 of the Gen. Sts., which authorized the plaintiff’s appointment as administrator de bonis non, is silent as to his authority, yet that he is within the intention and equity of \ 11 of c. 128 of the same statutes, and was rightly admitted by the superior court to prosecute the present action. In making this decision, we apply an old and unshaken rule in the construction of statutes, to wit, that the intention of a remedial statute will always prevail over the literal sense of its terms, and therefore when the expression is special or particular, but the reason is general, the expression should [430] be deemed general. Co. Lit. 24 b. Beawfage’s case, 10 Co. 101 b. Dwarris on Sts. (2d ed.) 616. Whitney v. Whitney, 14 Mass. 92, 93. People v. Utica Ins. Co. 15 Johns. 381. Crane v. Alling, 2 Green, (N. J.) 593. Winslow v. Kimball, 25 Maine, 495. Murphy v. Leader, 4 Irish Law Rep. 143, and Jebb & Bourke, 75. 1 Kent Com. (6th ed.) 461, 462. Exceptions overruled.