Hammond v. Granger

Gray, C. J. The object of the Gen. Sts. c. 97, §§ 8-11, is to secure to creditors of a deceased person, whose right of action does not accrue within the period of the special statute of limitations, but whose debts become due while the estate, not having been fully administered, is still within the jurisdiction of the Probate Court, a right to share in any assets which remain in or may come to the hands of the executor or administrator. The first step to be taken by the creditor is to present his claim to the Probate Court, which is to examine the same, and, “if it appears that the same is justly due from the estate,” to “order the executor or administrator to retain in his hands sufficient to satisfy the same,” unless a person interested in the estate offers to give bond to the alleged creditor “ for the payment of the demand in case the same is proved to be due,” in which case the court may “ order such bond to be taken, instead of requiring assets to be retained as aforesaid.” § 8. The de-cision of the Probate Court is not conclusive in favor of the petitioner, and his claim is not to be paid unless he proves it to be due in an action, brought within one year after it becomes payable, against the executor or administrator, if he has been required to retain assets; otherwise, upon the bond given by a person interested. §§ 9, 10. If the action is brought on the bond, the plaintiff may declare in like form', and the defendant may set up like defences, as if the action were prosecuted in the usual manner against the executor or administrator. § 11. The jurisdiction of the Probate Court under § 8 does not attach unless the claim is presented to it “ before the estate is fully administered.” If the claim is so presented, the duty of that court does not involve an inquiry into the present amount of assets, but is limited to examining whether the claim appears to be justly due from the estate, and, if it does so appear, ordering sufficient assets to be retained, or a sufficient bond to be given, for the payment or satisfaction of the claim if subsequently proved to be due in an action at law. These preliminary proceedings for obtaining security have the like object with an attachment on mesne process and a bond to dissolve such an attachment; and leave the amount of the creditor’s claim to be [354] afterward» determined at law, and the amount of property held for its payment to be ascertained when he comes to recover judgment and to levy execution. It has already been decided that this petitioner has such a claim against the estate of Lorenzo N. Granger (of which John W. Smith and Sophronia Granger, the respondents, are administrators) as surety on the bond given by the former trustees (John W. Smith and George C. Smith) under the will of Cotton Smith, as will support this petition. Hammond v. Granger, 128 Mass. 272. By the statement of facts, upon which the case has now been submitted to our determination, it appears that the estate of Lorenzo 1ST. Granger has not been fully administered, and that the administrators have the sum of $1518.60 in their hands for the payment of debts. The petitioner is therefore entitled to a decree that the respondents retain sufficient assets in their hands to satisfy his claim. Upon this appeal, we are not required to consider whether, in the action at law to be brought against them, he can have judgment for assets guando aceiderint; nor whether, in case part of his claim should be paid, on execution or otherwise, out of the estate of Lorenzo N. Granger, the surety, the obligation of John W. Smith as principal to reimburse to the estate of the surety the sum so paid will become assets in the hands of himself and his .co-administrator. See Hindsley v. Russell, 12 East, 232; Osterhout v. Hardenbergh, 19 Johns. 266; Leland v. Felton, 1 Allen, 531; Hazelton v. Valentine, 113 Mass. 472; Tarbell v. Jewett, 129 Mass. 457. Decree affirmed.