Edmunds v. Rockwell

Gray, C. J. When the personal estate of a deceased person is insufficient to pay his debts, his executor or administrator may sell his real estate for that purpose, upon obtaining a license therefor. Gen. Sts. c. 102, § 1. The executor or administrator, having given bond and published due notice of his appointment, is not indeed liable to an action at law by any creditor, unless it is commenced within two years from the time of his giving bond, except in ease of new assets received afterwards, or of a failure by defect in form or service of an action brought within the two years, or of a right of action accruing after the expiration of the two years and before the settlement of the estate. Gen. Sts. c. 97, §§ 5 seq. Blanchard v. Allen, 116 Mass. 447. But if the estate is represented insolvent, the creditors may prove their debts against it before commissioners appointed for the purpose, and it is the duty of the Probate Court to order, and of the executor or administrator to make, distribution of the assets among the creditors to the extent of the claims proved; and the creditors cannot, after the representation of insolvency, maintain actions at law against him, unless upon a demand entitled to a [365] preference, or the estate proves solvent. Gen. Sts. a. 99, §§ 2, 17, 19, 20, 25. It is as much the duty of the executor or administrator, so far as the estate is sufficient for the purpose, to pay debts established by proof seasonably presented to commissioners, as to pay debts established by judgment in an action seasonably commenced against himself. If there had been neither action brought nor commissioners appointed within the two years, the debts would have been wholly barred by the special statute of limitations, and therefore the real estate could not have been afterwards sold to pay them. Aiken v. Morse, 104 Mass. 277. Tarbell v. Parker, 106 Mass. 347. But in the very cases in which it was so held it was clearly recognized that real estate might be lawfully sold after the expiration of the two years to pay debts which had been presented to commissioners within that time. 104 Mass. 279. 106 Mass. 349. See also Bacon v. Pomeroy, 104 Mass. 577, 583; Palmer v. Palmer, 13 Gray, 326, 328; Freeman v. Ward, 16 Pick. 201; Guild v. Hale, 15 Mass. 455. In the present case, the debts having been presented to commissioners and allowed by them within the two years, the real estate was rightly ordered to be sold for the payment of the debts so proved. Exceptions overruled.