Converse v. Johnson

Field, J. The promissory note was dated December 10, 1867, and was in legal effect payable on demand. The construction we give to the Gen. Sts. c. 155, § 9, (Pub. Sts. c. 197, § 11,) is, that as Mary F. Hart had her domicil and actual residence in Hew Hampshire when she gave the note, and continued to have them there until her death, and only made short, occasional visits in this Commonwealth, our statute of limitations never began to run in her favor. Within the meaning of the statute, she never came into this Commonwealth, but was absent from and resided out of it during the whole time which elapsed between the date of the note and her death. Rockwood v. Whiting, 118 Mass. 337. She died testate in Hew Hampshire, on June 3, 1870, and her will was duly proved there in September, 1870, but no letters testamentary or of administration were ever issued in that State. In December, 1870, a copy of the will was duly filed, allowed, and recorded in Middlesex County, in this Commonwealth, where she left property. This was done on the petition of the persons named as executrixes in the will, but as they failed to file a bond, no letters testamentary were granted to them ; “ and the estate remained unadministered until April 14, 1885,” when the defendant was duly appointed administrator with the will annexed by the Probate Court of that county, and gave due notice of- his appointment. Marshall F. Barrett, the payee and holder of the note, died in this Commonwealth, on April 5, 1883, and the plaintiff was duly appointed administrator of his estate by said Probate Court, on June 26, 1883, and gave due notice of his appointment. He brought this suit on June 19, 1886. The defendant as administrator could not have been sued within one year after he gave a bond as administrator, which we assume was on April 14,'’ 1885, the date of his appointment. And a suit must be commenced against him within two years after he gave the bond. Pub. Sts. c. 136, §§ 1, 9. After Mary F. Hart died, there was no one anywhere who could be sued until the defendant was appointed administrator. It has been decided that § 12 of the Pub. Sts. c. 197, (Gen. Sts. c. 155, § 10,) is to be construed distributively. Hill v. Mixter, 5 Allen, 27. The precise point decided in that case is, that an [23] action brought by the executor of the estate of the holder of a note against the executor of the estate of the maker, more than two years after the defendant’s appointment, although within two years after the plaintiff was appointed executor, cannot be maintained ; and it is said that § 10 of the Gen. Sts. c. 155, does not extend the time for bringing the action beyond that limited by the Gen. Sts. c. 97, §§ 5-8. If Barrett had lived, the statute of limitations would not have been a defence, if he had brought this suit at the time it was brought. The contention is, that it cannot be maintained by the administrator of his estate, because brought more than two years after the grant of letters of administration to him. Section 12 of the Pub. Sts. c. 197, was intended to be a reenactment of the Gen. Sts. c. 155, § 10, and it was enacted in the Public Statutes in the form reported by the Commissioners. The Commissioners made some unimportant verbal changes, and omitted the words, “ and not afterwards if otherwise barred by the provisions of this chapter,” found at the end of the section in the General Statutes. It cannot be held that this omission was intended to change the law. The Pub. Sts. c. 197, § 12, cannot well be construed to mean that in every case the executor or administrator of a deceased person, who was entitled to bring an action, must bring the action within two years after the grant of letters testamentary, or of administration. The section was not intended further to limit the bringing of actions, but to extend the time within which they could be brought when the person entitled to bring them died before the expiration of the time, or within thirty days after the expiration of the time limited by other provisions of the statutes. It was not intended by this section that the debtor should have a defence to which he was not otherwise entitled, or that an executor or administrator should not collect debts due the estate by suits brought more than two years after his appointment, when the debts were not barred by other provisions of the statutes. . See Corliss Steam Engine Co. v. Schumacher, 109 Mass. 416. Judgment affirmed.